(a) Defendant is charged with rape in the first degree (PL 130.35(1)) and kidnaping in the second degree (PL 135.20) in a case involving a 16 year old victim. If convicted of kidnaping and attempted rape in the first degree, defendant must (check all that apply): __ register as a sex offender, __ supply a DNA sample, __ submit to an HIV test at the victim's request.
(b) If defendant is convicted instead of rape in the third degree (PL 130.25) and unlawful imprisonment in the second degree (PL 135.05) as lesser included offenses, defendant must __ register as a sex offender, __ supply a DNA sample, __ submit to an HIV test at the victim's request.
Answer : The answer to this multi-part question involves the treatment of "attempted" offenses under three different statutes.
Sex Offender Registration Act (SORA): Under Corrections Law 168-a(2), a "sex offense" includes the attempt to commit any of the specified completed offenses. And, under Corrections Law 168-a(3), a "sexually violent offense" includes the attempt to commit any of the specified completed offenses.GungaWeb handles the question like this:
DNA: Under Executive Law 995(7), a "designated offender" for purposes of DNA registration includes a person convicted of only two attempted crimes: attempted murder in the first degree (PL 125.27) or attempted burglary in the third degree (PL 140.20). Attempts are thus not DNA registration offenses, except as specified.
HIV: CPL 390.15 authorizes administration of a mandatory HIV test at a victim's request only upon conviction of a specified offense "enumerated" in Article 130, or upon a Y.O. adjudication based thereon. It does not by its terms authorize the test upon conviction or adjudication for an attempted offense.
Upon conviction for attempted rape in the first degree, sex offender registration is required because SORA explicitly applies to attempted sex offenses. DNA registration is required because the attempted crime is still a violent felony. An HIV test is not authorized for an attempted offense. Upon conviction for kidnapping in the second degree, sex offender registration is required for this offense also, because the victim is under age 17. DNA registration is required because kidnapping second degree is a violent felony. The HIV testing provision is inapplicable. With respect to rape in the third degree, (which is not a lesser included offense of rape in the first degree but may be so treated in certain circumstances, see CPL 300.50(6)), SORA applies, as the conviction is for a "sex offense." DNA registration is required even though the offense is not a violent felony, because PL 130.25 is a "designated offense" under Executive Law 995(7). HIV test is available. With respect to unlawful imprisonment in the second degree, SORA applies because the victim is under 17, however neither DNA nor HIV provisions apply.
Everyone with me so far? Good.
Part (a) : Click on Article 130, then PL 130.35 to retrieve the charge. Scroll down to the Sentences function area, and use the drop-down list controls to select Attempted offense and First Felony Offender. Click on Sentences to obtain a Sentencing Report, and observe that it contains the following section on Additions:
Similarly, generate a Sentencing Report for Completed commission by an Adult of the class A-I felony of PL 135.25, containing the following section on Additions:
Read the above-researched results directly from these reports, checking supporting references as desired.
Part (b) : With a few clicks, generate similar Sentencing Reports for PL 130.25 and PL 135.05, containing the following Additions sections:
As before, read the required results directly from the automated Sentencing Reports. Easier than doing it by hand, yes?