2012-527, Justin Czyzewski v. New Hampshire Department of Safety, Bureau of Hearings

Desfosses Law Firm, of Portsmouth (Philip Desfosses on the brief), for the

No. 2012-527 Merrimack

to register” as a sex offender in New Hampshire. Although the record does not ___________________________ The petitioner sought a ruling that he be “removed from the requirement THE SUPREME COURT OF NEW HAMPSHIRE

Superior Court (McNamara, J.) denying his request for a declaration that,

(2007 & Supp. 2012). We affirm. page is: http://www.courts.state.nh.us/supreme. 2012), he is not required to register as a sex offender under RSA chapter 651-B a.m. on the morning of their release. The direct address of the court's home although he was convicted of attempted sexual assault, RSA 632-A:4 (Supp. reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 HICKS, J. The petitioner, Justin Czyzewski, appeals a ruling of the

Department of Safety. general, on the memorandum of law), for the respondent, New Hampshire Michael A. Delaney, attorney general (David M. Hilts, assistant attorney

petitioner.

to press. Errors may be reported by E-mail at the following address:

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as questions of law, which we review de novo. In re Athena D., 162 N.H. 232, 235

p. 2 The interpretation and application of RSA 651-B:1 and :2 present

attempt to violate either RSA 632-A:4, I(a) or :4, III.

does not dispute that concession, we assume that his conviction was for an

an “[o]ffense against a child” under RSA 651-B:1, VII(a). Because the State conviction, attempted sexual assault, is encompassed within” the definition of RSA 651-B:1, VII(a) (Supp. 2012). The petitioner “concedes that his crime of

of the offense: . . . sexual assault, RSA 632-A:4, I(a) or RSA 632- (a) . . . where the victim was under the age of 18 at the time

conspiracy, or solicitation to commit, any of the following offenses:

the following offenses, including an accomplice to, or an attempt,

An “offender against children” means a person who commits any of:

actual victim.” Because his attempt was aimed at a police officer rather than offender or offender against children” to register with the department of safety. In its current form, RSA 651-B:2, I (2007) requires “[e]very sexual

he appeals. statutory scheme, not in isolation. State v. McGurk, 163 N.H. 584, 587 (2012).

plain and ordinary meaning. In re Athena D, 162 N.H. at 235. “When the time of the offense’ does not include his crime of conviction where there was no register because the phrase “‘where the victim was under [the age of] 18 at the The petitioner argues that RSA chapter 651-B does not require him to

required to register in New Hampshire.” The trial court denied his petition, and 625:3 (2007). Finally, we interpret statutes in the context of the overall and to promote justice. State v. Moran, 158 N.H. 318, 321 (2009); see RSA statutes, but rather construe them according to the fair import of their terms Pump Co., 163 N.H. 727, 731 (2012). We do not strictly construe criminal further indications of legislative intent.” Phaneuf Funeral Home v. Little Giant language of a statute is plain and unambiguous, we do not look beyond it for

of the statute itself, and, if possible, construe that language according to its whole. State v. Thiel, 160 N.H. 462, 465 (2010). We first look to the language intent of the legislature as expressed in the words of a statute considered as a (2011). In matters of statutory interpretation, we are the final arbiter of the stated, “was required to register as a sex offender [there] because he would be old female.” The petitioner now lives in Pennsylvania but, as the trial court room with an undercover police detective, whom [he] believed to be a 13-year-

the trial court noted that the petitioner “engaged in conduct in an online chat contain the details of his conviction for attempted sexual assault, RSA 632-A:4, to categorize attempt crimes in this way or to benefit a category of manifestly

p. 3 crime. There is no indication in the statute that the legislature intended either

take a substantial step in targeting an “actual victim,” but do not complete the operations, whose crimes typically have no “actual victims,” and those who “actual victim” would be to distinguish between those caught in police sting

The only way to construe the text of RSA 651-B:1, VII(a) to require an

of conviction. was going to meet a minor and commit the elements that constitute his crime

is that the petitioner entertained a subjective – albeit incorrect – belief that he

overall statutory scheme. McGurk, 163 N.H. at 587. In context, therefore, the

actor need only intend to commit the crime and take a step that, under the 629:1, I (2007). Therefore, to be guilty of an attempt to commit a crime an

subjectively believed that such a victim existed. Thus, all that is required here

light of that language. We must construe the phrase in the context of the such, they may not involve an actual victim. See People v. Buerge, 240 P.3d crimes. By their very nature, attempt crimes are not completed crimes. As

constituting a substantial step toward the commission of the crime.” RSA Buerge, 240 P.3d at 367. An actual “victim” – meaning, one who has been only taken a substantial step toward, but has not completed, the crime.” age of eighteen, but must also refer to attempt crimes in which the offender “In attempt crimes, there may be no victim because the perpetrator has phrase cannot refer only to crimes in which there is an actual victim under the

we must construe the phrase “where the victim was under the age of 18” in Because the prefatory language to the statute includes attempt crimes, of the statute’s prefatory language. The prefatory language includes attempt (unabridged ed. 2002) – is not an element of an attempt crime. “subjected to . . . suffering,” Webster’s Third New International Dictionary 2550

circumstances as he believes them to be, is an act or omission to act that a crime be committed, he does or omits to do anything which, under the “A person is guilty of an attempt to commit a crime if, with a purpose derived from Model Penal Code). Code and its commentaries to interpret our Criminal Code because it is largely (1985); see In re Alex C., 161 N.H. 231, 240 (2010) (we look to Model Penal actor’s criminal purpose.” Model Penal Code and Commentaries § 5.01(2) circumstances as the actor believes them to be, is “strongly corroborative of the petitioner’s interpretation reads the word “victim” in isolation instead of in light We cannot subscribe to the petitioner’s statutory interpretation. The

registration requirement of RSA 651-B:1, VII. an “actual victim,” he contends that his crime does not fall within the

363, 367 (Colo. Ct. App. 2009). p. 4 4

Affirmed.

‘victim’ as contemplated by” New York’s Sex Offender Registration Act); Colbert DALIANIS, C.J., and CONBOY, LYNN and BASSETT, JJ., concurred.

intended victims turned out to be undercover police officers. See People v. distinction). dangerous criminals for no other reason than the fortuitous fact that their offender registry statute “cannot be interpreted reasonably” to create such a State, 619 S.E.2d 3 p. 4 46, 351 (Ga. Ct. App. 2005) (noting that Georgia sex offense whose sexual solicitations were actually received by a minor”); Spivey v. undercover police officer “is indistinguishable from one committing the same solicits sex from a person believed to be a minor but who is in fact an v. Com., 624 S.E.2d 108, 113 (Va. Ct. App. 2006) (noting that a person who

law enforcement officer posing as an underage child on the Internet is not a DeDona, 95 p. 4 4 N.Y.S.2d 541, 543 (App. Div. 2012) (rejecting argument “that a