A convicted sex offender’s appeal of his designation as a sexually violent offender under the state’s Sex Offender Registration Act is coming back to Chautauqua County Court.

The Fourth Department Court of Appeals in Rochester ruled recently that a former Pennsylvania resident who was convicted by a jury of statutory sexual assault, aggravated indecent assault and involuntary deviate sexual intercourse was improperly designated a sexually violent offender by County Court Judge David Foley when he rendered his decision in the case on June 29, 2023. According to the case summary prepared by the Board of Examiners of Sex Offenders in New York, the Pennsylvania man had oral and other sexual conduct with a child from the summer of 1995 through the spring of 2020.

The former Pennsylvania resident is challenging the designation as a sexually violent offender since it would require him to a lifetime registration in New York. Like five similar cases involving Chautauqua County over the past year, the man is challenging the court’s reliance of a section of the Sex Offender Registration Act that defines a sexually violent offender under the foreign registration clause, which says a sexually violent offense includes a conviction of a felony in any other jurisdiction in which the conviction occurred.”

The Fourth Department Appellate Court of Appeals has ruled in the past that the use of the foreign registration clause violates some defendants’ rights under the U.S. Constitution. Heather Burley, a county public defender, argued that the provision is unconstitutional on its face and as applied to the Pennsylvania man by Foley. Amber Payne argued the case on behalf of the Chautauqua County District Attorney’s office.

“With respect to the defendant’s as-applied substantive due process claim, we conclude, based on the reasoning applied by the plurality in People v. Malloy that there is no rational basis for designating a defendant a sexually violent offender solely on the ground of his conviction of the Pennsylvania felony sex offense requiring him to register as a sex offender in that jurisdiction,” wrote Justice Nancy Smith for the court. “Defendant has therefore met his burden of showing that the imposition of the sexually violent offender designation under the second disjunctive clause of Correction Law Section 168-a(3)(b), as applied to him, violates his constitutional right to substantive due process.”

The justices didn’t agree, though, that the Pennsylvania man shouldn’t be considered a sexually violent offender. That matter, Smith’s opinion states, is still an open question.

“However, we note that the issue of whether the essential elements of any of the Pennsylvania felonies were the statutory equivalent of a sexually violent offense in New York under the essential elements test set out in the first disjunctive clause of Correction Law Section 168-a(3)(b) was never raised before County Court,” Smith wrote. We decline to consider that alternative basis for affirmance, sua sponte, for the first time on appeal. We therefore remit to county court to consider whether any of the Pennsylvania felonies include all of the essential elements of a sexually violent offense set forth in state Correction Law Section 168-a(3)(a).”