People v. Perez

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Justia Opinion Summary

The Court of Appeals affirmed the order of the Appellate Division, holding that Defendant's prior New Jersey conviction was within the scope endangering the welfare of a child under New York law, and therefore, the courts below did not err in assessing Defendant thirty points under risk factor nine of the Sex Offender Registration Act (SORA) risk assessment when determining Defendant's presumptive risk level.

In 1999, Defendant was convicted in New Jersey for lewdness in the fourth degree. At issue in this appeal was whether Defendant was properly assessed thirty points under risk factor nine for the New Jersey conviction. The Court of Appeals held that the assessment was warranted and that Defendant's adjudication as a level two Sex Offender was correct because Defendant's prior New Jersey conviction was tantamount to endangering the welfare of a child under New York law.

People v Perez 2020 NY Slip Op 02096 Decided on March 26, 2020 Court of Appeals Feinman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 26, 2020
No. 20

[*1]The People & c., Respondent,

v

Jose Perez, Appellant.



Harold V. Ferguson, Jr., for appellant.

Jean M. Joyce, for respondent.




FEINMAN, J.

We are called upon to determine whether defendant Jose Perez was properly assessed 30 points under risk factor 9 of the Sex Offender Registration Act (SORA) risk assessment instrument for his prior New Jersey conviction for lewdness. Drawing from our decision in North v Board of Examiners of Sex Offenders of State of New York (8 NY3d 745 [2007]), we hold that defendant's prior New Jersey conviction is tantamount to endangering the welfare of a child under New York law. Thus, an assessment of 30 points under risk factor 9 was warranted, and defendant's adjudication as a level two sex offender was correct.

I.

"[T]he purpose underlying SORA [is] to protect the public from sex offenders" (People v Mingo, 12 NY3d 563, 574 [2009]). To that end, by legislative mandate, the New York Board of Examiners of Sex Offenders (the Board) has created specific "guidelines and procedures" designed to assess the risk that a sex offender will reoffend and the likely harm that would be inflicted upon the reoffense (Correction Law § 168-l [5]; People v Sincerbeaux, 27 NY3d 683, 691 [2016]; see generally Sex Offender Registration Act, Risk Assessment Guidelines & Commentary, 2006 [hereinafter "Guidelines"]). The Legislature provided the Board with broad authority to design the Guidelines by basing them, among other things, on "criminal history factors to be considered in determining risk, including . . . . the number, date, and nature of prior offenses" (Correction Law § 168-l [5] [b] [iii]).

In advance of a sex offender's release from prison, the Board must complete a risk assessment instrument, assessing points based on the risk factors set forth in the Guidelines, to recommend to the SORA court "one of three-statutorily-prescribed levels of notification—level one, two, and three in ascending order of risk—based on an offender's calculated risk to reoffend" (People v Francis, 30 NY3d 737, 743 [2018], citing Correction Law § 168-l [6]). An offender's risk-level designation typically corresponds to the total number of points assigned for the 15 risk factors enumerated in the Guidelines (see Guidelines at 3).

The points system was designed to be objective yet "individualized," "eschew[ing] per se rules" (see Guidelines at 2-3). In keeping with this approach, if "special circumstances" are present, the Board or court may depart from the presumptive risk level corresponding to the offender's total risk assessment points score (see Guidelines at 4; People v Howard, 27 NY3d 337, 341 [2016], citing People v Gillotti, 23 NY3d 841, 861 [2014]; People v Johnson, 11 NY3d 416, 421 [2008]). To that end, although the Board must rely on "clear and convincing evidence of the existence of [a] factor" in order to assess points, it need not rely only on "the crime of conviction" that subjects a defendant to registration under SORA, but may derive evidence from, among other things, "the sex offender's admissions; the victim's statements; the evaluative reports of the supervising probation officer, parole officer or corrections counselor; or . . . any other reliable source" (Guidelines at 5; see also Mingo, 12 NY3d at 576-577, citing Correction Law § 168-n [3]).[FN1]

Risk factor 9 of the Guidelines, which concerns the "Number and Nature of Prior Crimes," provides that an offender must be assessed 30 points for, as relevant here, "a prior conviction or adjudication for . . . a misdemeanor sex crime, or endangering the welfare of a child, or any adjudication for a sex offense" (Guidelines at 13; see also Correction Law § 168-l [5] [b] [iii]). The rationale for assessing points for criminal history is that it bears strongly on offenders' "likelihood of sexual recidivism, particularly where [their] past includes violent crimes or sex offenses" (see Guidelines at 13)[FN2]. With respect to endangering the welfare of a child—which is not a registrable sex offense under the Correction Law or one of the "sex offenses" listed under section 130 of the Penal Law—the Board assesses 30 points under risk factor 9 and presumptively treats such a conviction or adjudication "as if it were a sex crime because it generally involves sexual misconduct, especially when it is part of a plea bargained disposition" (see Guidelines at 14; Sincerbeaux, 27 NY3d at 689; see also Mem from Div of Probation and Correctional Alternatives, dated July 21, 1995, Bill Jacket, L 1995, ch 192).[FN3]

II.

In 1999, defendant was convicted in New Jersey for lewdness in the fourth degree, a felony offense,[FN4] for [*2]which he was sentenced to two years' probation (see NJ Stat Ann § 2" target="_blank">People v Howard, 27 NY3d 337, 341 [2016], citing Correction Law § 168-n [3]), and "[t]he court is not bound by the Board's recommendations but, rather, must make its own determinations based on the evidence" (People v Cook, 29 NY3d 121, 125 [2017]). "Where the hearing court's findings, expressly made under the proper evidentiary standard, are affirmed by the Appellate Division, this Court's review is limited to whether the decisions below are affected by an error of law or are otherwise not supported by the record" (People v Lashway, 25 NY3d 478, 483 [2015]).

A.

At the outset, we must resolve whether reliance on the underlying conduct of a prior foreign conviction is appropriate as a matter of law for purposes of assessing points under risk factor 9 when conducting a SORA risk-level determination. Under these circumstances, we hold that it is.

Our analysis of the New Jersey conviction starts with North v Board of Examiners of Sex Offenders of State of New York, wherein we considered whether the defendant was required to register as a sex offender as a result of his federal conviction for possession of child pornography (8 NY3d 745 [2007]). That question turned on the "essential elements" provision in SORA, which defines "sex offense," in relevant part, as "a conviction of an offense in any other jurisdiction which includes all of the essential elements of any [registrable sex offense in New York listed in section 168-a (2) of the Correction Law]" (Correction Law § 168-a [2] [d] [i] [emphasis added]). We concluded that, with respect to registrable offenses, the "essential elements" provision "requires registration whenever an individual is convicted of criminal conduct in a foreign jurisdiction that, if committed in New York, would have amounted to a registrable New York offense" (North, 8 NY3d at 753).

Specifically, we determined that "the Board [must] compare the elements of the foreign offense with the analogous New York [registrable] offense to identify points of overlap" and "[w]hen the Board finds that the two offenses cover the same conduct, . . . the foreign conviction is the equivalent of the registrable New York offense for SORA purposes" (id. at 753). "In circumstances where the offenses overlap but the foreign offense also criminalizes conduct not covered under the New York offense, the Board must review the conduct underlying the foreign conviction to determine if that conduct is, in fact, within the scope of the New York offense" (id.).

Hence, we expressly rejected the application of the strict equivalency standard used to determine whether a prior foreign conviction is a predicate conviction for purposes of mandatory enhanced recidivist sentencing pursuant to article 70 of the Penal Law (see North, 8 NY3d at 752). The strict equivalency standard permits the examination of only the elements of the crime that are the subject of the foreign conviction to determine whether that conviction corresponds to a New York felony (see People v Muniz, 74 NY2d 464, 467-468 [1989]). It does not involve a review [*4]of the allegations in the accusatory instrument unless the foreign crime describes several different acts—both misdemeanor and felony—as criminal (see id.; cf. People v Gonzalez, 61 NY2d 586, 590-591 [1984]). This is because "[a]t bottom, the strict equivalency test protects from the imposition of a predicate felony offender sentence based on the mere accusations underlying the foreign conviction—allegations, of course, of which a defendant may not have been convicted" (People v Helms, 30 NY3d 259, 263-264 [2017]; People v Jurgins, 26 NY3d 607, 613 [2015]). In the SORA registration context, on the other hand, we reasoned that the strict equivalency standard was "not the optimal vehicle to effectuate SORA's remedial purposes" and it was thus appropriate to utilize a more flexible approach that allowed consideration of the underlying conduct of a foreign conviction in addition to comparing the essential elements of the foreign and New York offenses (North, 8 NY3d at 751, 752).

The analysis set forth in North is equally apt when considering, as here, how to assess points for a prior foreign conviction for purposes of determining the sex offender's risk to the community and concomitant level of notification to which the offender must conform [FN8]. Significantly, as we concluded with respect to registrable offenses in North, the concerns underlying the application of the strict equivalency test are mitigated in the context of a civil SORA risk-level determination. As we have noted on several occasions, "SORA is not a penal statute and the registration is not a criminal sentence. Rather than imposing punishment for a past crime, SORA is a remedial statute intended to prevent future crime'" (People v Gravino, 14 NY3d 546, 556 [2010], quoting North, 8 NY3d at 752; People v Windham, 10 NY3d 801, 802 [2008], citing Doe v Pataki, 120 F3d 1263 [2d Cir 1997], cert denied 522 US 1122 [1998]). As opposed to the penal purposes of enhanced sentencing, the ultimate and "paramount concern" of the SORA risk-level assessment, is "an accurate determination of the risk a sex offender poses to the public" (Mingo, 12 NY3d at 574). Thus, SORA's remedial purposes underlie both the initial registration determination and the secondary risk assessment level determination bearing on the frequency of registration and degree of community notification required.

For those reasons, assessing points under risk factor 9 for foreign convictions similarly warrants a less rigid approach to allow for an individualized determination that fully captures the offender's potential risk to the public. Examining, where necessary under the "essential elements" test, the underlying conduct of a foreign conviction to compare it to—for example—the New York offense of endangering the welfare of a child, an offense explicitly contemplated by the Board as germane to an offender's risk of recidivism, effectuates the remedial purposes of SORA and adheres to the plain language of the Correction Law and the Guidelines. Moreover, reliance on evidence of an offender's conduct underlying the foreign judgment of conviction is entirely consistent with the available information on which a SORA court may rely when making a risk-level determination, including "relevant . . . reliable hearsay evidence submitted by either party" such as the Board's case summary, an unsworn victim statement, or the sex offender's admissions (Correction Law § 168-n [3]; Mingo, 12 NY3d at 576-577; see also People v Diaz, No. 37 SSM 28, 2020 WL 768680, at *1 [NY Feb 18, 2020]). Accordingly, the Board and courts should apply the North "essential elements" test when assessing whether, for SORA purposes, a foreign conviction is comparable to endangering the welfare of a child under New York law.

B.

Next, we must determine whether, applying the North "essential elements" test, defendant's New Jersey lewdness conviction is comparable to endangering the welfare of a child in New York, warranting the assessment of 30 points under risk factor 9 of the Guidelines. Because defendant's New Jersey conviction is comparable to the New York offense of endangering the welfare of a child, it was proper to assess defendant 30 points for his prior criminal history (see Sincerbeaux, 37 NY3d at 689).[FN9]

A comparison of the elements of defendant's New Jersey conviction and the endangering the welfare of a child offense in New York reflects considerable but not exact overlap. The New Jersey statute under which defendant was convicted criminalizes actors' "expos[ure] [of] [their] intimate parts for the purpose of arousing or gratifying . . . [their] sexual desire . . . under circumstances where [they] kn[ew] or reasonably expect[ed] [they] [were] likely to be observed by a child who [wa]s less than 13 years of age where the actor [wa]s at least four years older than the child" (NJ Stat Ann § 2" target="_blank">see also People v Kolupa, 59 AD3d 1134, 1135 [4th Dept 2009] [the exposure of one's genitals to a seven-year-old is enough to constitute endangering the welfare of a child in New York], affd on other grounds 13 NY3d 786 [2009]).[FN10]

Insofar as the conduct underlying defendant's New Jersey conviction was within the scope of endangering the welfare of a child under New York law, the courts below did not err in assessing defendant 30 points under risk factor 9 when determining defendant's presumptive risk level [FN11]. Accordingly, the order of the Appellate Division should be affirmed, without costs. People v Jose Perez

No. 20


FAHEY, J. (concurring):

I agree with the result reached by the Court, and I vote to affirm, but I cannot join the majority opinion. As the dissent explains, the People disavowed and therefore did not preserve the argument that defendant's criminal conviction in New Jersey was tantamount to endangering the welfare of a child. Accordingly, the Court of Appeals has no power to review the issue (see generally Hecker v State of New York, 20 NY3d 1087, 1087 [2013]).

Rather, the question before the Court is whether the New Jersey conviction amounted to a conviction of "a misdemeanor sex crime," within the meaning of risk factor 9 in the Sex Offender Guidelines (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, Factor 9 [3] [2006]). In my view, this question was adequately preserved. Since the second SORA hearing, the parties have not disputed that defendant has a New Jersey conviction of lewdness in the fourth degree (NJ Stat § 2" target="_blank">Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745 [2007]), to decide whether defendant's [*6]New Jersey conviction is equivalent to a New York misdemeanor that is sexual in nature. Review of the underlying conduct would be necessary if the elements of the foreign crime of conviction and the purported corresponding New York crime overlap but the foreign offense criminalizes conduct not covered under the New York offense. Here, any conduct proscribed by the New Jersey lewdness statute would also be criminalized by the New York public lewdness statute (compare NJ Stat Ann § 2" target="_blank">People v Perez, 162 AD3d 1083, 1084 [2d Dept 2018]). The fact that public lewdness is not itself a registrable sex offense under Correction Law § 168-a (2) is not dispositive of whether it is a "sex crime" under risk factor 9 (see People v Izzo, 26 NY3d 999, 1002 [2015]; People v Barrier, 58 AD3d 1086, 1087 [3d Dept 2009]; accord Matter of Registrant J.M., 167 NJ 490, 507 [2001])). Nor is it significant that Penal Law § 245.00 is codified in a part of the Penal Law other than article 130 ("Sex Offenses"). Notably, the Commentary on the Sex Offender Guidelines itself gives "public lewdness" as an example of a "sex crime" (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 2 n 2).

For these reasons, I would hold that there is record support for the lower courts' conclusion that the People proved by clear and convincing evidence that defendant's New Jersey conviction was equivalent to a New York misdemeanor sex crime for the purposes of calculating risk factor 9.

People v Jose Perez

No. 20


WILSON, J. (dissenting):

If hard cases make bad law, botched cases make even worse law. Had the People, in the Sex Offender [*7]Registration Act (SORA) risk-level determination for Mr. Perez, either relied on the New Jersey conviction instead of adamantly insisting they were not, or sought in the alternative an upward departure, this case would have been resolved simply in a way fully consistent with the Guidelines. Instead, this case comes to us in a tortured form not likely to repeat itself. In resolving it, the majority conflates the criteria for determining who must register as a sex offender (a legislative determination) with the risk of further offense by a sex offender (a psychological determination). En route, the majority abandons (temporarily, one assumes) our preservation doctrine, deciding this case on a ground not merely ignored — but expressly repudiated — by the People below. The irony is that neither of those maneuvers would have been necessary to adjudicate Mr. Perez a level-two sex offender had the People relied on the New Jersey statute (instead of Mr. Perez's conduct), or sought an upward departure, which is customarily sought in circumstances such as these.

I.

Briefly, federal legislation enacted in 1994 compelled states to adopt laws identifying sex offenders, requiring their registration, and assigning risk levels to them (42 USC § 14071 [the Jacob Wetterling Act]). New York enacted SORA in 1995 to comply with the federal mandate (Correction Law § 168 et seq.). By statute, New York has identified the offenses in our Penal Law that are "registerable" offenses; that is, if convicted of an enumerated crime, a person is deemed a "sex offender" and will appear on New York's sex offender registry (Correction Law § 168-a[2]). The statutory determination as to which crimes are registerable is largely driven by federal requirements from the federal Jacob Wetterling Act.

The New York registry, in turn, differentiates among sex offenders based on an assessment of risk. Offenders are classified as either level one (low risk), level two (moderate risk), or level three (high risk) (Correction Law § 168-l[6][a]-[c]). SORA also created the New York Board of Examiners of Sex Offenders (the Board), composed of "experts in the field of the behavior and treatment of sex offenders," who were charged with "develop[ing] guidelines and procedures to assess the risk of a repeat offense by such sex offender and the threat posed to public safety" (Correction Law § 168-l[5]). The Board developed guidelines and procedures to aid in the risk assessment of offenders, commonly referred to as the Guidelines, based on "criteria that find support in the academic literature and are commonly used by sex offender experts" (Guidelines at 23). The Board attempted to "make [the Guidelines] as objective as possible [because] . . . unnecessary complexity would frustrate uniform results" (id.). The Board also "test[ed] the guidelines against a large sample of cases to insure that accurate results were produced" and "invited a panel of experts to review them and propose improvements" before the final Guidelines were issued (id.). The registration requirement (what crimes are sex offenses) and the risk level (what factors affect the risk of future offense) are not congruent in purpose, source or effect. The former is based on a legislative judgment about what offenses are sex offenses; the latter based on expert evaluation of the factors that affect the future likelihood of re-offense.

II.

Jose Perez was arrested for selling crack to an undercover officer in New York City in 1996. He skipped town while his case was pending. In 1998, he was arrested in New Jersey for exposing himself, through a window, to a neighboring 12-year-old girl. The People contend he was convicted of public lewdness and sentenced to two years' probation. Though public lewdness is an "indictable crime" in New Jersey, it is not a registerable offense there. Thus, as of 1998, Mr. Perez was not deemed a sex offender, and was not required to appear in any sex offender registry. In 2002, he entered the home of an acquaintance in Florida, asked the 10-year-old resident for a glass of water, and then molested her. He was sentenced to nine years in prison, served seven, and was then released to the custody of New York, where he belatedly served his sentence for the original drug offense. Upon his release in 2012, Mr. Perez was deported.

Mr. Perez's Florida conviction rendered him a sex offender, which required him to appear on New York's sex offender registry with an appropriate risk-level designation. As the majority notes, the Board recommended a level-two designation, based on a risk assessment score of 85 points, 30 of which came from a determination that his New Jersey conviction warranted those points under risk factor 9 of the Guidelines. Before the SORA court, Mr. Perez contended that he should be awarded only five points under risk factor 9, not 30.

One should not take the description of Mr. Perez's SORA proceeding as a "two-part" hearing to mean it was thorough, careful or complete (majority op at 7). The first part consisted of a total of 14 pages of transcript, three of which were opening and closing pleasantries. In the remaining 11 pages, the People first explained that the Florida conviction was the offense that required Mr. Perez's registration. Then, horribly mistaken, the People contended that [*8]the assessment of 30 points under risk factor 9 derived from Mr. Perez's previous conviction "in New Jersey of a charge of lewdness, lewd and lascivious conduct . . . on a ten-year-old child." Understandably confused because the Florida crime, not the New Jersey crime, involved a 10-year-old, defense counsel asked the People whether they were "requesting 30 points based on a misdemeanor sex crime." The People responded that they were not; instead, they were relying on a "prior sexual offense," as the New Jersey crime was "actually" a felony. The People were, again, incorrect: the defense counsel informed the court that the crime in New Jersey was not for lewd and lascivious conduct but rather lewdness, a distinct crime, that is "not a sex crime in New York." Again, the People, reading from a police report, claimed that Mr. Perez's New Jersey offense was for lewd and lascivious conduct against a ten-year-old. Defense counsel pointed out that the report from which the People and court were reading to establish the facts of the New Jersey crime bore the heading, "Lake Worth [Florida] Police Department." At that point, the People admitted that they "stood corrected," and informed the court that they did not have "information at this time on the underlying facts of the lewdness felony conviction in the State of New Jersey."

Faced with the People's complete retraction of every fact allegedly warranting the imposition of 30 points under risk factor 9, the court offered an adjournment, which the People accepted to "get information about the underlying facts" and "produce additional documentation" as to the New Jersey crime. Before adjourning, defense counsel confirmed that the New Jersey conviction was "not [for] endangering the welfare of a minor," despite the People's contrary suggestions. The People replied that it would "completely retract those statements until the People have information about the underlying New Jersey offense." So much for part one of the two-part hearing.

The second part of the SORA hearing consists of a whopping eight pages of transcript, two of which are taken up by the court's oral ruling. In the remaining six pages, the People returned with New Jersey case documents regarding Mr. Perez's arrest, but not his indictment or conviction [FN12]. That omission reflects a deliberate choice by the People to disclaim reliance on the New Jersey statute and rely, instead, on Mr. Perez's conduct. The People specifically relied on the narrative continuation report, containing the victim's statements regarding Mr. Perez's conduct. According to the People, that document supplied "clear and convincing evidence that the New Jersey act involved a 12-year-old child and sexual conduct by the defendant" (emphasis added). The People reaffirmed that they were "relying not on the [New Jersey lewdness] statute itself nor on the fact that while the New Jersey statute was a felony, there is a misdemeanor in the State of New York" (emphasis added). Instead, the People were "relying on the conduct of the defendant underlying the conviction and it involved sexual conduct toward a 12-year-old child" (emphasis added). Defense counsel argued in response that Mr. Perez "was not convicted of sexual conduct"; although "he might have been charged with that," there was no record of his conviction of that. "The only document turned over . . . indicate[d] [Mr. Perez] committed sexual assault, [and] that [wa]s clearly not the case." From the papers, it did not look like "he was ever charged with sexual assault." Before the conclusion of the case, the People "again" confirmed they were "not relying on the conviction" but on the conduct. The court ultimately declined to depart from the Board's recommendation and adjudicated Mr. Perez a level-two offender. Understandably, given the People's decision to eschew reliance on any New Jersey statute, there is no document in the record showing the New Jersey crime of which Mr. Perez was convicted. The SORA court's decision does not identify the New Jersey criminal statute under which Mr. Perez was convicted.

[*9]III.

Risk factor 9, "Number and Nature of Prior Crimes," allows for three possible point adjudications: 30 points if the offender has prior criminal history that includes a "conviction or adjudication" for a number of crimes including a "misdemeanor sex crime, or endangering the welfare of a child, or any adjudication for a sex offense," 15 points if the "offender has a prior criminal history that includes a felony conviction or adjudication but not for a violent felony or sex crime," or five points if the "offender has a prior criminal history but no convictions or adjudications for a sex crime or felony."[FN13] According to the specific guidelines for risk factor 9, an offender's prior criminal history is significantly related to his likelihood of sexual recidivism, "particularly when his past includes violent crimes or sex offenses" (Guidelines at 13). Risk factor 9 incorporates that research by assessing 30 points only "if [the offender] has a prior conviction or adjudication," as emphasized by the Guidelines (id.), to an enumerated list of crimes. Mr. Perez's request for an assessment of just five points comports with his counsel's statement that he was convicted of lewdness, which is not a "sex crime" in New Jersey (or New York for that matter). Assuming, as the majority does, that Mr. Perez was convicted of lewdness under New Jersey Statute 2" target="_blank">see People v Gillotti, 23 NY3d 841, 861 [2014]). The majority appears to recognize that an upward departure would have been the preferable outcome here where the issue arises "from a gap . . . which fails to specifically account" for evidence that should be considered for the purposes of evaluating an offender's risk of re-offense (majority op at 8). As clear as the Guidelines are that risk factor 9 requires a conviction or adjudication, they are equally clear that where there is evidence of conduct but no evidence of a conviction or adjudication, a request for an upward departure is the means by which conduct may be taken into account. For example, where an offender has confessed to a crime but there had been no judicial determination, the Guidelines note that such an admission "may . . . form the basis for an upward departure if there is clear and convincing evidence that the conduct occurred" (Guidelines at 7). The Guidelines' "flexible approach that allow[s] the consideration of underlying conduct" (majority op at 11) appears in the allowance for departures; the risk factors are meant to be calculated as per the instructions accompanying them. Here, the People inexplicably did not seek an upward departure. Instead of addressing that lapse by reformulating risk factor 9 to remove its expert foundation, we should avoid that Guideline carnage and reverse, with the expectation that the lapse will not be repeated.

V.

Because the People failed to preserve any argument based on Mr. Perez's lewdness conviction, the majority decides to borrow the inapposite "essential elements" test from North. By that means, the majority holds Mr. Perez's conduct was "tantamount to endangering the welfare of a child under New York law" (majority op at 2). But, North is inapplicable here; as the majority acknowledges, North applies "with respect to registrable offenses" (majority op at 9). That is, North identifies "registerable offenses" based on legislative judgments as to what constitutes a "sex offense" — not expert judgments about what factors affect the likelihood of future offense. North's holding makes its narrow application all the more clear; there, we "conclude[d] that the essential elements' provision in SORA requires registration whenever an individual is convicted of criminal conduct in a foreign jurisdiction that, if committed in New York, would have amounted to a registrable New York offense" (North, 8 NY3d at 753 [emphasis added]). The essential elements provision that the North Court purports to interpret is a provision of Correction Law § 168-a(2)(d), which mandates registration in New York if a person is convicted in a foreign jurisdiction of a crime containing "all of the essential elements" of a registrable New York offense (North, 8 NY3d at 748-749). The export of the essential elements test to risk factor 9 makes no sense: it is an interpretation of statutory language that, although present in the Correction Law for the purposes of registration, is not present in Correction Law § 168-l, the section of the statute that creates a board of "experts in the field of the behavior and treatment of sex offenders," charged with "develop[ing] guidelines and procedures to assess the risk of a repeat offense by such sex offender and the threat posed to the public safety."

Although the majority asserts that the "analysis set forth in North is equally apt" in this context (majority op at 11), the legislature did not agree. Rather, the legislature opted to create two distinct provisions, one based on policy judgments about what crimes to call "sex offenses," and the other to create a board of experts to develop psychologically-based risk factors incorporated into an assessment tool (compare Correction Law § 168-a[2][d] with Correction Law § 168-l). One simple way to observe the incongruity of equating the registration requirements and risk factors is to note that the legislature determined that Murder and Arson are not registerable sex offenses, but the Board determined that murderers and arsonists must be awarded 30 points under risk factor 9 because of the relationship of those crimes to the likelihood of sex crime re-offense.

That the essential elements test in the registration context is distinct from the considerations for the purpose of risk assessment is clear even from our analysis in North, where we rejected applying a strict equivalency test derived from the criminal enhanced sentencing context to SORA registration because, "in the enhanced sentencing cases, we have not used the phrase essential elements,' much less characterized the relevant inquiry as an essential elements' test" (North, 8 NY3d at 751). Applying that analysis here would prevent the use of North's essential elements test, where the statute codifying the Guidelines and the Guidelines themselves do not use the phrase "essential elements."

Even were we to accept the application of the North test, it would not provide a basis for affirmance here [FN15]. [*11]The first step of the North test is to compare statutory elements to statutory elements. Here, the People relied solely on Mr. Perez's conduct before the SORA court. The SORA court likewise based its decision on evidence of Mr. Perez's conduct, not New Jersey statutory elements. Thus, we cannot accurately compare the "elements" of that conduct to New York's Penal Code.

Indeed, putting the preservation problem aside, the majority's attempt to apply North on the basis of Mr. Perez's lewdness conviction exposes how inapt that standard is when applied to the risk assessment context. Under 2" target="_blank">cf. People v Crews, 127 AD3d 491 [1st Dept 2015] [in considering whether a foreign conviction warranted a 30-point assessment under risk factor 9, the People could not meet their burden absent evidence of the underlying facts of the crime]).

Footnote 9: Though beside the point, we agree that defendant was never convicted or even charged (so far as the record reflects) with endangering the welfare of a child in New Jersey (see dissenting op at 10, 11). The dissent maintains that a more "straightforward comparison" would be between lewdness statutes (dissenting op at 15-16); however, the name of an out-of-state conviction is not conclusive of what may constitute an "analogous" offense in New York for purposes of applying North (8 NY3d at 753; see also e.g. People v Kruger, 88 AD3d 1169, 1171 [3d Dept 2011] [comparing "lewd assault on a male child" in Florida to "sexual abuse in the second degree" in New York]). Under the first step of the North analysis, we compare an out-of-state, non-registrable conviction with "any" statutorily-defined registrable sex offense in New York (see Correction Law § 168-a [2] [d] [i]) "to identify points of overlap" (North, 8 NY3d at 753) and ultimately determine whether a defendant must register as a sex offender in New York. Similarly, here, we compare an out-of-state, non-registrable conviction with an expressly identified offense that the Board has deemed sufficient to award 30 points under the Guidelines in order to determine the extent of obligations and community notification attendant to defendant's sex offender adjudication in New York. We also note that despite the similarity in names, the relevant New Jersey and New York lewdness statutes are quite different in one important respect. Namely, unlike New Jersey lewdness in the fourth degree (and New York endangering the welfare of a child), the New York public lewdness statute does not require the victim to be a minor (see Penal Law § 245.00 [b] [1]).

Footnote 10: Notably, in State v Hackett, the Supreme Court of New Jersey also equated conduct underlying New Jersey's lewdness and endangering the welfare of a child offenses, noting that "the nudity of the defendant" is the "common denominator that is an element of both [offenses]" (166 NJ at 76).

Footnote 11: We do not opine, however, on whether the same analysis would be proper in connection with any of the categories of convictions or adjudications subject to a 30-point assessment under risk factor 9 other than endangering the welfare of a child. Moreover, our analysis is limited to consideration of a prior foreign conviction when conducting a risk-level assessment for purposes of SORA.

Footnote 12: The documents the People chose to include in the record before the SORA court are muddled. Mr. Perez's SORA Case Summary explains only that, with respect to Mr. Perez's New Jersey criminal record, "the offender is noted as having a prior March 1999 sex offense conviction related to a charge of Lewdness' . . . for which he was sentenced to two years probation." However, lewdness is not a sex offense in New Jersey (see New Jersey Statute 2" target="_blank">People v Helms, 30 NY3d 259, 263-264 [2017]).

Footnote 16:Under 2C:14-2(b), at the time of Mr. Perez's conduct, a defendant would be guilty of sexual assault if "he commits an act of sexual contact with a victim who is less than 13 years old and [he] is at least four years older than the victim," where sexual contact includes "self-contact" (Zeidell, 154 NJ at 431).



Primary Holding

The Court of Appeals held that Defendant's prior New Jersey conviction was within the scope endangering the welfare of a child under New York law, and therefore, the courts below did not err in assessing Defendant thirty points under risk factor nine of the SORA risk assessment when determining Defendant's presumptive risk level.


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