NY Daily Record Since 1908
New York state’s highest court has ruled that a man must register as a violent sex offender because of a conviction in Michigan, even though that crime would not require the same registration if committed in New York state.
Under New York’s Sex Offender Registration Act (SORA) two circumstances require a person convicted of an offense in another jurisdiction to register as a sex offender.
In one case, registration is required if the offense includes all of the elements of a specific sex offense or “sexually violent offense.”
Registration is required if the offense falls within SORA’s foreign registration requirements — a felony in another state that would require the offender to register in that jurisdiction.
In the case of Daniel Talluto, the issue is whether he is required to be designated a sexually violent offender regardless of whether the underlying offense is violent.
In a 5-1 split decision the New York State Court of Appeals ruled that it does.
In 2012, Talluto was convicted in Michigan of first-degree criminal sexual conduct, a felony that required him to register as a sex offender under Michigan’s SORA.
In 2020, Talluto relocated to New York state. The Board of Examiners of Sex Offenders determined that Talluto was required to register as a sex offender due to the felony conviction which requires registration as a sex offender in Michigan.
The Board determined Talluto was a level one risk and recommended that County Court adjudicate him with no sexually violent offender designation.
The prosecutor agreed with the recommendation, but the court concluded that the law required that Talluto be designated a sexually violent offender because he was convicted in Michigan of a felony that required him to register as a sex offender in that state.
“Although the court believed the result illogical, it concluded that any error or perceived injustice in the statute was a matter for the legislature,” Judge Shirley Troutman wrote for the court.
Talluto’s appellate lawyer argued that the clause that required the designation was a legislative drafting error.
“We reject that contention … The sole issue before us is one of pure statutory interpretation,” Troutman wrote.
“The statutory language is clear and unambiguous,” she wrote.
“Practically everyone involved in this case from its inception — defendant, the People, the county court judge, all five justices at the Appellate Division, including the Justices in the majority and the dissent, and apparently the Board of Examiners of Sex Offenders — agree that the statute is problematic as applied to defendant,” Troutman wrote.
The Advisory Committee on Criminal Law and Procedure to the Chief Administrative Judge of the Courts of the State of New York has concluded that (the clause at issue) was added in error and, accordingly, has recommended every year since 2010 that the legislature delete it,” according to the decision.
“Defendant — and the many learned judges, lawyers, and legal scholars — may well be correct … but that does not give the courts license to ignore it.”
Judge Rowan Wilson dissented.
“I fully agree with the majority that under the circumstances of this case, it is not within our purview to rewrite the challenged portion of the Correction Law.”
Talluto’s appellate attorney “contends that the legislature has authorized courts to exercise their discretion not just to alter a risk level determination upwards or downwards, but also to exercise their discretion when determining whether someone is a sexually violent offender,” Wilson wrote.
Wilson favored sending the case back to a lower court “to exercise their discretion.”
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