A third designation of a sexually violent offender under the Sex Offender Registration Act in Chautauqua County has been reversed upon appeal.

Fourth Department Appellate Division judges reversed their third such case in three months in late July. Once again, the case cites precedent the court set in a June case involving a decision made by Judge David Foley – though similar cases haven’t yet begun to spring up from other courts in the Eighth Judicial District.

In the July case, a person pleaded guilty in a North Carolina court of sexual activity by a substitute parent, a section of North Carolina law dealing with aiding and abetting a felony offense. After the defendant in the case moved to New York state, the Board of Examiners of Sex Offenders determined she was required to register as a sex offender in New York and classified her as a presumptive level one risk, the lowest of three designations the board gives.

Jason Schmidt, county district attorney, argued in a departure statement that County Court Judge David Foley should designate the woman a sexually violent offender pursuant to state Correction Law Section 168-a (3) (b), which defines a sexually violent offense as including a “conviction of a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred.” The clause is also known as the foreign registration clause. Schmidt argued that because the defendant was convicted of a felony in North Carolina for which she was required to register as a sex offender in that state, she qualified for designation as a sexually violent offender in New York.

The woman argued the state Correction Law was unconstitutional on its face and unconstitutionally applied to her under the Due Process Clause of the 14th Amendment to the U.S. Constitution.

“After a hearing, the court determined that the defendant is a level one risk and designated her a sexually violent offender. We now reverse the order insofar as appealed from and vacate the sexually violent offender designation,” wrote Justice Nancy Smith in the court’s opinion.

Smith wrote the county did not dispute the nonviolent nature of the North Carolina crime, and no points were assessed under risk factor 1 for use of violence. Unlike in other cases, Schmidt didn’t argue that the sex offense in North Carolina would have been a sexually violent crime under New York law.

“In short, the sole reason put forward by the People for seeking the ‘sexually violent’ designation was the operation of the challenged statute,” Smith wrote. “We reject the People’s contention that there is a rational basis for defendant’s designation–that she was convicted of a registerable sexual felony outside New York, and New York has an interest in protecting the public at large from sex offenders.”

Unlike the other two cases involving out-of-state sex offenders who challenged their registration in Chautauqua County under the Foreign Registration Clause in state law, there was no dissent in the July decision. Justice Gerald Whalen, the presiding justice of the Fourth Department Appellate Division, and Justice Scott DelConte, the justices who dissented in two earlier decisions, were not assigned to the latest case.