Q: I am on the sex offender registry in another state. If I move to New York, will I get credit for the time I was on the registry in my state?
It is possible – but not automatic to be credited with time spent on another state’s registry. When a person moves to NY from another state, there is a procedure that the state follows in determining whether a person must register, and for how long. In New York, registrants are afforded a hearing to determine their risk level. Level 1’s register for a period of 20 years while level 2 and 3 register for life.
As with most laws, this topic is vague and often confusing.
New York State Correction Law § 168-k:
“The division shall advise the board that the sex offender has established residence in this state. The board shall determine whether the sex offender is required to register with the division. If it is determined that the sex offender is required to register, the division shall notify the sex offender of his or her duty to register under this article and shall require the sex offender to sign a form as may be required by the division acknowledging that the duty to register and the procedure for registration has been explained to the sex offender.”
New York State Correction Law § 168-h:
“The duration of registration and verification for a sex offender who has not been designated a sexual predator, or a sexually violent offender, or a predicate sex offender, and who is classified as a level one risk, or who has not yet received a risk level classification, shall be annually for a period of twenty years from the initial date of registration.”
The law does not discuss whether a person receives credit for time on a registry in another state, nor does it define “initial date of registration.”
Process for Determining Risk Level
Upon relocating to New York, the individual must notify the state, at which time the case will be forwarded to the Board of Examiners of Sex Offenders (The Board), in Albany. The individual will then have an opportunity to submit any information to the Board. After receiving all relevant information, the Board will review the conviction and decide as to whether the person is required to register under NYS law. If indeed the person must register, the Board will prepare a case summary. This is a written recommendation to the local county court in which the person plans to reside. The county court will then hold a hearing in which the person has a right to appear and be heard to determine their risk level (1 – low risk, 2 – moderate risk, 3 – high risk).
Initial Date of Registration Debate
It has been the “position” of the Board that a person’s “initial date of registration” begins when they first register in NY. This would mean that a person moving from another state where they have been registered for 15 years, would essentially be required to “start over” in New York – in other words, they would not receive credit for time served on a registry in another state.
However, in the 2018 case of Hubert v. NYS DCJS, the petitioner challenged the Board’s position and argued that “initial date” should be the date of initial registration in the original state. After moving from Florida to New York, the petitioner was afforded a hearing to determine his risk level. Although he was initially found to be a level 2, he filed for modification and received a level 1 risk level.
Rensselaer County State Supreme Court held that the petitioner be granted time served on Florida’s registry. As a result, the petitioner – who moved to NY in 2013 and has been a law-abiding member of society since his charge more than 22 years ago – will be removed in 2023. Without receiving credit for his time, he would have been required to register until 2033.
Receiving Time Credit is Not Automatic:
It is important to make a request to the judge to receive time served in the previous jurisdiction – it is not automatic. Specifically, this is known as a “nunc pro tunc” order, a Latin phrase that translates to “now for then.”
UPDATE August 2022: A recent case decided on June 29, 2022, in the Second Department Appellate Division held that registrants SHOULD NOT get credit for time spent on registries in other states. This is currently precedent that courts will follow. This decision may be appealed to the Court of Appeals in the future.
Without advocacy in this area, a person will likely not be awarded time served on a sex offender registry in another state. His or her registration “clock” will begin when they move to New York.