A case involving sex offender registration for someone moving into the county is coming back to Chautauqua County Court.

Last week’s decision is the latest in a string of Appellate Division rulings dealing with the county’s use of the foreign registration clause of the Sex Offender Registration Act. Judges from the Fourth Department Appellate Division have sent the most recent case to be appealed involving a California man back to Judge David Foley for further argument because the record doesn’t clearly establish if the man’s crimes in California constitute a violent sexual felony under New York state law.

“Based on the record and briefing before us, we cannot determine whether the nature of the crime of conviction in California was violent in nature,” wrote Justice Stephen Lindley of the Fourth Department Appellate Division in his opinion released Friday. “Under the circumstances, we are similarly unable to determine whether the foreign registration clause of Correction Law Section 168-a (3) (b) is constitutional, under the Due Process Clause, as applied to defendant. We therefore hold the case, reserve decision and remit the matter to County Court to decide whether the foreign registration clause is constitutional as applied to defendant.”

In January 2005 the California man was convicted by a plea of lewd or lascivious acts committed on a child under the age of 14. According to the case summary presented by the Board of Examiners of Sex Offenders in New York, the allegations underlying the California conviction were that the man, who was 18 years old or olde, engaged in sexual conduct with a developmentally challenged boy who was 12 and 13 years of age several times between August 2002 and October 2003. There were no other convictions on his record.

Unlike other foreign registration cases originating from Chautauqua County in recent months, the California man’s case has open questions that the court was unable to answer without more information. If the California conviction meets the definition of a sexual violent offense under New York law, then the court would hold that the foreign registration clause as applied to him is constitutional. If the California case is nonviolent in nature then the court would rule the California man shouldn’t be deemed a sexually violent offender in New York.

Determining whether or not the California man’s prior offense qualifies as a sexually violent crime touches on two areas of the foreign registration clause of the state’s Sex Offender Registration Law. The first part of the law requires courts to determine if the original crime meets the essential elements of a sexually violent crime in New York state. There was agreement amongst the five Appellate Court justices that there wasn’t enough information to make a determination whether or not the county had met the essential elements test. The second reason to send the case back to Chautauqua County Court is for District Attorney Jason Schmidt to make an argument on the record why the California man’s case meets the essential elements test.

The decision wasn’t unanimous. Three justices joined with Lindley’s opinion in the case. Justice John Curran concurred in the decision, saying the California man had proven a Due Process Clause challenge by showing there is no rational basis for designating him a sexually violent offender solely on the California conviction that would require him to register as a sex offender in California.

Justice Jeannette Ogden, meanwhile, also concurred with the first reason to send the case back to Chautauqua County Court for further argument. But, she reiterated past opinions that at least part of the foreign registration clause is unconstitutional. Three times in recent months the Fourth Department Appellate Division has ruled the county has unconstitutionally required sex offenders moving into the county from other states to register as violent sex offenders despite a low-risk classification from the Board of Examiners of Sex Offenders.