Chautauqua County is now zero for four this year defending sex offender designations it has placed on sex offenders moving to the county from other states.

An Ohio man was convicted of soliciting via telecommunications device another person who was between the ages of 13 and 16 while he was 23 years of age while living in Ohio. The man was sentenced to a local jail term and post-release supervision while being required to register as a sex offender in Ohio. He then moved to New York several years later.

The state Board of Examiners of Sex Offenders determined the man was required to register as a sex offender in New York, but at the lowest level while not recommending the Ohio man be designated as a sexually violent offender.

County officials disagreed with that decision, arguing the man should be designated a sexually violent offender under the foreign registration clause of state Corrections Law. The county’s use of the foreign registration clause had already been overturned three times so far this year by Fourth Department Appellate Division justices, with the decision announced Friday in the case of the Ohio man being the fourth.

Just as past cases seeking to reverse the county’s designation of a person as a sexually violent offender have argued, the Ohio man challenged the constitutionality of the foreign registration clause of the Sex Offender Registration Act violated his 14th Amendment right to due process both as written and as applied to him. Ned Barone, county public defender who represented the Ohio man in the case, argued the county’s reading of the foreign registration clause that a sexually violent offense includes any conviction of an out-of-state felony for which sex offender registration is required in the state of conviction is not rationally related to any legitimate governmental purpose and misleads the public, and places an unwarranted lifetime stigma on those persons whose underlying offenses are not violent.

Jason Schmidt, county district attorney who argued the case before the Fourth Department Appellate Division, argued that applying the sexually violent offender designation to any out-of-state offender with a registrable felony conviction is rationally related to the legitimate state interest of protecting vulnerable populations, including the public at large, from potential harm by sex offenders.

Chautauqua County Court has ruled, during past cases, that it would adhere to its previous rulings that challenges to the foreign registration clause were without merit. That reasoning has now been overruled four times by the appellate court.

Appellate Court justices wrote that the Ohio charge is similar to the New York felony charge of first-degree disseminating indecent material to minors, which the Sex Offender Registration Act classifies as a sex offense, but not a sexually violent offense. Relying on the precedent set earlier this year in another case involving a foreign registration clause challenge originating from Chautauqua County, a majority of the Appellate Division justices found in the Ohio man’s favor.

“We further agree with (the) defendant that, contrary to the People’s assertions, labeling (the) defendant as a sexually violent offender is not rationally related to any legitimate governmental interest. Although, as the People contend, the government has a legitimate interest in protecting vulnerable populations, and in some instances the public at large, from the potential harm posed by sex offenders, that generalized purpose, which is not focused on the particular distinction in designation between sex offenders and sexually violent offenders at issue here, ‘is already served by requiring defendant to register in New York as a sex offender,'” Justice Nancy Smith, presiding justice, wrote in her majority opinion.

Justice Scott DelConte, who also dissented in two of the earlier foreign registration clause cases involving Chautauqua County, dissented in the Ohio man’s case as well. DelConte disagreed with the majority’s finding that Chautauqua County Court erred when it applied the foreign registration clause and with its previous rulings that the foreign registration clause is unconstitutional on its face. DelConte argued the Ohio man didn’t prove the clause had been used improperly, relying instead on boiler plate language from the three prior appeals.

“Contrary to the conclusion of the majority, I do not believe that defendant met his burden of establishing that his designation as a sexually violent offender was unmerited and that the people’s reliance on the foreign registration clause in Correction Law § 168-a (3) (b) was therefore unconstitutional as applied to him,” DelConte wrote in his dissent. “Specifically, defendant did not argue before the (Sex Offender Registration Act) court that his predicate Ohio conviction did not include the essential elements of an enumerated sexually violent offense in New York. Instead, defendant presented to the SORA court, without distinguishing between a facial and an as-applied constitutional challenge, the same generalized argument that was presented by the defendant in Malloy, namely, that ‘there is no logical rationale in defining all registerable out-of-state sex offenses as ‘violent.’ Defendant repeats his generalized argument on appeal without further explication.”