DECISION AND ORDER The case at hand is another in a series of cases that illustrate the need for legislative reform to the Sex Offender Registration Act (Correction Law §168 et seq.). The defendant Steven Asare is charged with failure to verify address information every 90 days in violation of Correction Law §§168-f(3) and 168(t). Not crimes under the Penal Law, rather, these are D level felonies under the Correction Law for defendants with a previous conviction for the same offense. On February 13, 2020, Asare — a registered level three sex offender subject to residency verification requirements — is alleged to have not reported to 100 Centre Street for his statutorily mandated 90-day check-in to verify his current address. Thirteen days later, on February 26, 2020, law enforcement arrested Asare at his previously listed address on Ward’s Island. After Asare’s arraignment in supreme court, defense counsel filed the instant motion to dismiss the charges in the complaint in the interests of justice pursuant to CPL §210.40. A court is authorized to dismiss an indictment “in furtherance of justice…as a matter of judicial discretion” where there exists “some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant…would constitute or result in injustice.” CPL §210.40(1). The trial court’s discretion to dismiss an indictment in the interest of justice, should be exercised sparingly and only in “the unusual case that cries out for fundamental justice beyond the confines of conventional considerations of ‘legal or factual merits of the charge or even on the guilt or innocence of the defendant.’” People v. Belge, 41 NY2d 60, 62-63 (1976) (Fuchsberg, J., concurring) (citing People v. Clayton, 41 AD2d 204, 206 (2d Dept 1973)). In determining whether dismissal is appropriate, a court must, “to the extent applicable, examine and consider, individually and collectively”: (a) the seriousness and circumstances of the offense; (b) the extent of harm caused by the offense; (c) the evidence of guilt, whether admissible or inadmissible at trial; (d) the history, character and condition of the defendant; (e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant; (f) the purpose and effect of imposing upon the defendant a sentence authorized for the offense; (g) the impact of a dismissal upon the confidence of the public in the criminal justice system; (h) the impact of a dismissal on the safety and welfare of the community; (i) the attitude of the complainant or victim with respect to the motion; and (j) and any other relevant fact indicating that a judgment of conviction would serve no useful purpose. CPL §210.40(1)(a-j). Seriousness and Circumstances of the Offense The People claim that Asare’s failure to appear to verify his address is a significant offense that shows his conscious disregard of Sex Offender Monitoring Unit (SOMU) reporting requirements and suggests that he is a future flight risk. However, the uncontroverted facts of this case suggest otherwise. As mentioned above, law enforcement arrested Asare on February 26, 2020, thirteen days after he is alleged to have not reported for his 90-day check-in. Law enforcement arrested Asare at a Department of Social Services homeless shelter at Ward’s Island, which is Asare’s designated place of residence. He listed his address as Ward’s Island in previous check-ins with SOMU, and he has continued to reside there. Asare did not struggle or attempt to flee when he was arrested. Additionally, Asare’s reporting violation in the case at hand stands in contrast to his substantial compliance with SOMU requirements for almost 15 years. Since Asare has been on the sex offender registry since 2006, he has been subject to various reporting requirements, including the requirement that he appear in person to verify his residence every 90 days, about four times a year. During that time, Asare has failed to verify his address only once previously, in 2009, meaning that Asare perfectly complied with these extensive requirements for approximately 11 years prior to this violation. Furthermore, Asare has remained compliant with all SOMU reporting requirements in the year and a half since his arrest. These facts suggest that Asare forgot that he had an appointment, did not abscond from law enforcement, and will continue to abide by SOMU reporting requirements in the future. Asare committed a non-violent offense that did not cause harm to any person. Therefore, the court concludes that Asare committed a non-serious, relatively minor offense. Background of the Defendant In addition to the barriers to reentering society that all formerly incarcerated individuals face, individuals convicted of sex crimes, such as Asare, face an additional set of restrictions in accessing public services, affordable housing, and employment opportunities. In New York, as in many states, individuals convicted of sex crimes face consequences that continue long after release from prison. See People v. Parilla, 109 AD3d 20, 29 (1st Dept 2013) (noting that sex offender registries “increase the difficulties and embarrassment a sex offender may endure, even where he has led a law-abiding life since his conviction”). New York publicly labels individuals convicted of sex crimes as “sex offenders,” triggering extensive reporting violations for which failure to comply can result in felony charges. See id. New York’s Sexual Assault Reform Act (SARA) also heavily restricts housing opportunities by prohibiting sex offender registrants from living within 1,000 feet of a school in session during parole or conditional release. See Nowhere to Go: New York’s Housing Policy for Individuals on the Sex Offender Registry and Recommendations for Change, FORTUNE SOCY. 3-4 (2019) [hereinafter Nowhere to Go]. The 1,000-foot limit makes almost all of Manhattan off-limits to sex offender registrants. See id.; Report on Legislation by the Corrections and Community Reentry Committee, NYC BAR ASSN. (Nov. 2021). Even the Court of Appeals has lamented the “dearth of SARA-compliant housing in New York City.” Matter of Gonzalez v. Annucci, 32 NY3d 461, 462 (2018); see also People ex rel. Johnson v. Supt., Adirondack Corr. Facility, 36 NY3d 187, 207 (2020) (noting that SARA’s housing restrictions “present troubling issues concerning the fairness and effectiveness of the methods chosen by the legislature for deterring sex offender recidivism.”). Furthermore, a large body of empirical research supports the proposition that these sex offender requirements do nothing to reduce recidivism or promote public safety. See, e.g., State v. Floyd Y., 56 Misc 3d 271, 275 (Sup Ct, NY County 2017) (“There is no evidence the 1,000 foot rule promotes public safety.”). Instead, empirical evidence shows that sex offender residency and reporting requirements often lead to homelessness, unemployment, and social isolation. See Allison Frankel, Pushed Out and Locked In: The Catch-22 for New York’s Disabled, Homeless Sex-Offender Registrants, 129 YALE L.J. FORUM 279, 300; Nowhere to Go, at 8. These negative outcomes can be seen in Asare himself, who has lived in a homeless shelter on Wards Island for the past six years and has been systematically barred from many public services, affordable housing, and employment opportunities for almost fifteen years. A new felony conviction for a failure to report would make it even more difficult for Asare to reintegrate back into society.1 Therefore, the court concludes that Asare’s history, character, and condition favor dismissal. Public Confidence in the Justice System The People object to Asare’s Clayton motion, arguing that a dismissal in this case would erode public confidence in the criminal justice system as the court would be allowing Asare to get away with criminal behavior. However, the facts of the case and the empirical evidence regarding the efficacy of sex offender reporting requirements suggest otherwise. As stated above, sex offender registry reporting requirements do nothing demonstrable to further penological interests, such as deterrence and public safety. Furthermore, Asare has substantially complied with SOMU reporting requirements for nearly 15 years and has continued to comply since his arrest. Dismissal, in this case, does not mean that Asare is avoiding criminal responsibility. He has had to answer in court for this conduct. However, a dismissal here would show that the criminal justice system is concerned with remediation, can allow for a single lapse, and recognizes an overly technical application of a statute that has been criticized as needlessly broad. The facts available suggest that Asare had no intent to abscond from law enforcement. Therefore, the court finds that a dismissal would not erode public confidence in the justice system. Conclusion The case at hand is one of the “rare” cases — perhaps too rare — that “cries out for fundamental justice beyond the confines of conventional considerations.” People v. Belge, 41 NY2d 60, 62-63 (1976) (Fuchsberg, J., concurring). Asare’s history of substantial compliance with SOMU requirements, the relatively minor and technical nature of the alleged offense, and the hardships Asare has endured since being classified as a sex offender since 2006 all mitigate in favor of dismissal. The harm caused by Asare’s act was negligible, and fundamental justice requires that he be relieved of a felony conviction. Public confidence in the criminal justice will not be weakened by the court dismissing this indictment. Accordingly, Asare’s motion is granted, and the complaint is dismissed in the furtherance of justice. This shall constitute the decision and order of the court. Dated: November 10, 2021
