New York appeals court overturns classification as “sexual assault offender”

A state appeals court has overturned a lower court’s decision that classified a man as a sex offender under the state’s Sex Offender Registration Act based on a conviction in another state.

In November 2023, Chautauqua District Court Judge David W. Foley classified Adam Malloy as a sex offender under the state’s Sex Offender Registration Act.

In February 2010, as part of a plea agreement in a Kansas court, Adam Malloy was sentenced to three years probation and required to register as a sex offender in Kansas.

Malloy had no prior convictions and served his probation without incident.

About ten years later, Malloy moved to New York. When the state sex offender review board discovered that he was living in New York, the board ruled that he had to register as a sex offender in New York.

The committee made a recommendation to the court that Malloy be classified as a Level 1 risk. The committee recommended that no points be awarded for use of force and that Malloy not be classified as a sex offender under the Corrections Act.

The prosecutor filed a statement arguing that Foley should classify Malloy as a sex offender under state corrections law.

Malloy challenged that designation on the grounds that the prison law “bears no rational connection with any legitimate governmental purpose, misleads the public, and unfairly and permanently stigmatizes those whose crimes are not violent in nature.”

Foley ruled that Malloy posed a level one risk and classified him as a sex offender.

Malloy appealed to the State Supreme Court Appellate Division, Fourth Department, which overturned Foley’s order and revoked his sex offender designation.

Judges Stephen K. Lindley, E. Jeannette Ogden and Henry J. Nowak voted to vacate the conviction. Chief Judge Gerald J. Whalen and Judge Scott DelConte dissented and voted to affirm.

The sex offender designation is based solely on Malloy’s 2010 conviction of aggravated sexual assault in Kansas, which required him to register as a sex offender in Kansas.

“To the extent that defendant’s conviction of an out-of-state felony was a nonviolent misdemeanor, we agree with defendant that his constitutional right to due process was violated by the district court’s classification of him as a sex offender,” the court wrote.

The crime for which Malloy was convicted in Kansas was not violent in nature.

Neither the panel nor prosecutors asked for points to be awarded for the use of force. And the crime Malloy was convicted of would not be a sex offense if it had been committed in New York, the decision said.

The section of state corrections law that Foley relied on to classify Malloy as a sex offender “is unconstitutional as applied to him in that his misclassification as a sex offender bears no rational connection with a legitimate state interest,” the court wrote.

“We conclude that classifying defendant as sexually violent simply because he was convicted in another state of a sex offense that requires registration in another state – regardless of whether the underlying offense was a violent offense … is disproportionate to the legitimate state interest in informing the public about the threats posed by sex offenders,” the court wrote.

“When, as in this case, an offender is classified as a sex offender solely because he was convicted in another state and is therefore required to register in another state, the public is not properly informed of the actual danger posed by the offender,” the court wrote.

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