People v Johnson

[*1] People v Johnson 2022 NY Slip Op 22274 Decided on September 1, 2022 Criminal Court Of The City Of New York, New York County Gaffey, 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 printed Official Reports.

Decided on September 1, 2022
Criminal Court of the City of New York, New York County

The People of the State of New York,

against

Johnson, Defendant



Docket No. CR-005869-20NY



Shari Vrod and Joshua White for the Defendant, and Alvin L. Bragg Jr., District Attorney, New York County (by Paul Barker and Michael Kelley), for the People.
Michael Gaffey, J.

On July 20, 2022, this Court conducted a hearing pursuant to the Sex Offender Registration Act ("SORA"; see Correction Law § 168-n), and adjudicated Defendant, who was present in court, a level three sex offender with a predicate sex offender designation. This decision memorializes the oral decision rendered at the close of the hearing.

Relevant Facts and Procedural History

On March 5, 2020, Defendant was arraigned on charges of forcible touching (Penal Law § 130.52 [1]) and sexual abuse in the third degree (Penal Law § 130.55). The accusatory instrument alleged, in substance, that on March 4, 2020, at approximately 8:24 a.m., in front of 770 Lexington Avenue in New York County, Defendant grabbed the complainant's breast over her clothing, and reached with his hand towards her vagina, attempting to grab it. The court set bail. During the pendency of the case, Defendant remained incarcerated, and the People recommended a jail sentence on a plea to one of the misdemeanor charges. No post-release supervision through the Department of Probation or treatment was recommended by the People.

On June 4, 2020, in satisfaction of both charges, Defendant pled guilty to forcible touching (Penal Law § 130.52 [1]), and was sentenced to four months in jail. Although the complainant was not under the age of 18, Defendant was subject to sex offender registration due to certain prior convictions (see Correction Law § 168-a [2] [c]). Specifically, in 2002, Defendant was convicted of forcible touching (Penal Law § 130.52), and in 2005, he was convicted of rape in the third degree (Penal Law § 130.25).[FN1] Accordingly, following his June 4, [*2]2020, plea, Defendant's case was adjourned to September 3, 2020, for a SORA hearing, but the hearing was not conducted at that time.

On or about March 22, 2022, after becoming aware that Defendant had been re-incarcerated on another criminal matter, the court contacted the assigned prosecutor and defense counsel to reschedule Defendant's SORA hearing. Between March 22, 2022, and July 20, 2022, when the hearing was ultimately held, Defendant underwent two CPL 730 examinations in connection with his other pending case — an indicted felony docketed in New York County Supreme Court. Without objection from the parties, the court decided to wait for the examination results before commencing Defendant's SORA hearing. Following the second examination, resulting in a finding of unfitness, this Court concluded that it was obligated to proceed with the SORA hearing in this 2020 case.

The Board's Recommendations

Pursuant to its April 21, 2021, risk assessment instrument ("RAI"), the Board of Examiners of Sex Offenders ("the Board") recommended that Defendant be assessed five points for contact over clothing (risk factor 2); 20 points for stranger relationship with the victim (risk factor 7); 30 points for prior criminal history (risk factor 9); and 15 points for release without supervision (risk factor 14).

Although the total score of 70 points rendered Defendant a presumptive level one offender, the Board recommended an override to a level three based upon Defendant's 2005 felony conviction for rape in the third degree. The Board further recommended a predicate sex offender designation.

The Parties' Arguments

The People's recommendations were identical to the Board's. In addition to oral arguments made at the hearing, the People submitted the following written materials for the court's consideration: a recommendation letter, dated July 19, 2022; a proposed RAI; a District Attorney's Office Datasheet; the Criminal Court complaint; and the signed supporting deposition. The People also offered to provide Defendant's Department of Criminal Justice Services ("DCJS") criminal history report ("rap sheet"), but this Court indicated that it would rely on the copy contained within the Criminal Court file (see People v Woods, 52 Misc 3d 618, 621 [Crim Ct, NY County 2016] [court may take judicial notice of the defendant's rap sheet contained in the court file]).

Defendant, through his counsel, raised two main arguments at the hearing. First, he opposed the court's decision to proceed with the SORA hearing given Defendant's unfitness pursuant to a recent CPL 730 examination. Additionally, Defendant contended that the People did not prove the applicability of a felony override by clear and convincing evidence, in that rap sheets are routinely unreliable and are thus insufficient, without more, to establish a prior conviction.

Defendant's CPL 730 Exam Results

At the outset, this Court disagrees with Defendant's contention that his SORA hearing should have been delayed even further in light of the recent finding of unfitness pursuant to a [*3]CPL 730 examination. Indeed, in an analogous case, the Appellate Division, Second Department, rejected the argument that a finding of incompetency would require a SORA hearing and risk level designation to be foreclosed or postponed indefinitely (People v Parris, 153 AD3d 68, 78 [2d Dept 2017]). Notwithstanding a defendant's "significant interest in his SORA classification and the ability to meaningfully participate in the SORA proceeding . . . [t]he State has a substantial, overriding interest in assessing [a] defendant's risk level 'to aid law enforcement, prevent sexual victimization, and protect the public, which were the legislative purposes in enacting SORA'" (id. at 77-78, citing People v Wyatt, 89 AD3d 112, 127 [2d Dept 2011]; see also People v Watts, 58 Misc 3d 552 [Sup Ct, Bronx County 2017]). Moreover, "SORA proceedings are civil in nature," and defendants' "due process rights are well protected" (Watts, 58 Misc 3d at 555). As the court in Watts explained:

A defendant receives notice of the proceeding, the right to counsel and discovery. There is also an elevated proof requirement by the State of clear and convincing evidence. Additionally, the defendant has a right to appeal. Moreover, SORA is not designed to impose punishment but to prevent future crimes (id.).

Here, prior to Defendant's SORA hearing, more than two years had passed since his plea and sentence, during which time no risk level designation had occurred. While this Court thought it prudent to await the outcome of Defendant's CPL 730 examinations, which were pending, any additional delay would have contravened the provisions of the Correction Law and the goals of SORA. At his hearing, Defendant was present in court and represented by two attorneys, including the attorney who had represented him at the time of his plea and sentencing proceeding, and was presumably familiar with both Defendant and the underlying criminal case (see Parris, 153 AD3d at 78 ["risk of an erroneous deprivation of the defendant's interests is sufficiently mitigated by the procedures in place," which includes "representation by counsel"]). Should Defendant's circumstances change, and he were to be found mentally competent, Correction Law § 168-o (2) would allow him to petition the court for modification of his risk level classification (id. at 82; Watts, 58 Misc 3d at 556).[FN2]

The Risk Assessment Instrument

At a SORA hearing, the People "bear the burden of proving the facts supporting the determinations sought by clear and convincing evidence" (Correction Law § 168-n). In making its determinations, the hearing court may consider reliable hearsay, as defined by the Court of Appeals in People v Mingo (12 NY3d 563 [2009]; see also Correction Law § 168-n). Here, in support of its conclusion that the People satisfied their burden of proof, this Court considered the Case Summary prepared by the Board; the Criminal Court complaint and supporting deposition; and Defendant's rap sheet. Although the People also submitted a District Attorney's Office Datasheet for consideration, they failed to lay the proper foundation at the hearing to establish its reliability, as required by Mingo (see 12 NY3d at 574-576). Below, the court will address all [*4]categories under which the Board and the People recommended an assessment of points:

Sexual Contact with Victim (risk factor 2)

The Board recommended an assessment of five points for Defendant's sexual contact with the victim, which was over clothing. The People adopted this recommendation, and Defendant did not object. Accordingly, five points are assessed under this risk factor.

Relationship with Victim (risk factor 7)

Neither side objected to the Board's recommendation to impose 20 points under this risk factor, as the victim was a stranger to Defendant at the time of the offense. Therefore, 20 points are assessed.

Number and Nature of Prior Crimes (risk factor 9)

The People concurred with the Board's recommendation to assess 30 points, the maximum under this risk factor, for Defendant's prior criminal history. This Court also agrees. The Risk Assessment Guidelines and Commentary ("Guidelines"), promulgated by the Board in 2006, direct the SORA court to assess 30 points for a prior "violent felony, a misdemeanor sex crime, or endangering the welfare of a child, or any adjudication for a sex offense" (Guidelines at 13). Here, Defendant has two prior qualifying convictions — namely, his 2002 conviction for forcible touching, which involved a 15-year-old complainant, and his 2005 felony conviction for rape in the third degree. Consequently, 30 points are assessed under this risk factor.

Supervision (risk factor 14)

The Board and the People recommended an assessment of 15 points for release without supervision. According to the Guidelines, "[t]his category is premised on the theory that a sex offender should be supervised by a probation or parole officer who oversees a sex offender caseload or who otherwise specializes in the management of such offenders" (Guidelines at 17). With respect to this risk factor, however, it is worthwhile to examine the sentence recommended by the prosecutor during the pendency of Defendant's case. Indeed, Defendant's case is illustrative of a pattern of plea-bargaining practices within the District Attorney's Office on misdemeanor sex offense cases. Specifically, in cases where defendants are incarcerated, the People routinely recommend sentences solely involving incarceration, which do not include any form of post-release supervision, or even sex offender or other mental health treatment. As one Justice of the Appellate Division has suggested, such sentences "reflect[] the prosecutor's . . . recognition that probation," or other forms of supervision, are "not necessary to protect the public safety" (see People v Romulus, 189 AD3d 553, 558 [1st Dept 2020, Acosta, J., dissenting]). Nevertheless, notwithstanding their own sentencing recommendations, at the SORA hearings that follow, the People almost always request the maximum assessment of points for release without supervision. In doing so, the People contend, in effect, that a defendant's lack of supervision results in a heightened risk of re-offense, and thus a heightened risk to the public. In this Court's view, it is difficult to reconcile the People's position at [*5]sentencing with their position at the SORA hearing.

While this incongruence may be more appropriately addressed through a downward departure application (see id. at 558 [where defendant's lack of supervision was a result of the terms of the plea bargain, points under risk factor 14 were "correctly assessed" but "contributed to the RAI's over-assessment of defendant's risk of reoffending"]), Defendant's case presents other considerations relevant to this risk factor. Although risk factor 14 "relates to the offender's 'Release Environment' which involves an assessment of the offender's prospective work and living arrangements" (People v Diaz, 69 Misc 3d 132[A], 2020 NY Slip Op 51210[U], *2 [App Term, 1st Dept 2020]), the Guidelines do not address whether an assessment of points is appropriate where there is no clear and convincing evidence of a defendant's imminent, or even forthcoming release. At least one appellate court has suggested that a SORA court should consider a defendant's custody or release status at the time of the hearing (see People v Arrahman, 144 AD3d 1009, 1009 [2d Dept 2016] [improper to score under risk factor 14 since "at the time of the SORA determination, the defendant was subject to confinement in a secure treatment facility"]).

Here, in the months leading up to his SORA hearing, Defendant was remanded on his pending indicted felony, and shortly before the hearing, he was deemed unfit pursuant to a CPL 730 examination ordered in that case. Thus, under CPL 730.50, Defendant could remain in custody, for purposes of psychiatric treatment, for up to "two-thirds of the authorized maximum term of imprisonment for the highest class felony charged in the indictment" (CPL 730.50 [5]). Under these circumstances, contrary to the Board's recommendation, this Court finds that an assessment of points would be inappropriate because there is no clear and convincing evidence of Defendant's forthcoming release. A ruling to the contrary would assess him 15 points for release without supervision, the most under this risk factor, when in fact, he remains confined and subject to the highest level of supervision. Therefore, no points are assessed under risk factor 14.

***

Accordingly, pursuant to the RAI, Defendant is assessed a total of 55 points, rendering him a presumptive level one offender.

The Felony Override

Notwithstanding a defendant's score on the RAI, the Guidelines set forth four overrides that automatically result in a presumptive risk assessment of level three. The first override, which is relevant to Defendant's case, is for a prior felony conviction for a sex crime (Guidelines at 3, 19). "The People bear the burden of proving the applicability of a particular override by clear and convincing evidence" (People v Lobello, 123 AD3d 993, 994 [2d Dept 2014]). Once the People have met their burden, "a SORA court is not possessed of any discretion in determining whether to apply the override; the application of the override is automatic" (People v Gordon, 133 AD3d 835, 836 [2d Dept 2015]). That said, "the application of the override merely renders the defendant a presumptive level three offender, and a court may nevertheless depart from the presumptive risk level where the circumstances warrant such a departure" (id. at 836-37; see also People v Johnson, 135 AD3d 720, 721 [2d Dept 2016]).

In this case, contrary to Defendant's contentions, the Board's Case Summary and the rap [*6]sheet were sufficient to establish Defendant's prior felony conviction of rape in the third degree (see Mingo, 12 NY3d at 573 ["case summaries . . . certainly meet the 'reliable hearsay' standard for admissibility at SORA proceedings"]; People v Hiram, 142 AD3d 1304, 1305 [4th Dept 2016] [reliability of criminal history report]; People v Camacho, 75 Misc 3d 133[A], 2022 NY Slip op 50491[U], *1 [App Term, 1st Dept 2022] [same, "particularly given that defendant did not dispute the truthfulness or the accuracy of his prior conviction"]; see also People v Suarez, 51 Misc 3d 620, 627-28 [Crim Ct, NY County 2016] ["A document can be so patently trustworthy as to be self-authenticating . . . If there was ever such a document, it is a New York State rap sheet generated, and based on information maintained by, the DJCS"] [internal quotations and citations omitted]). Indeed, with respect to this prior conviction, the Case Summary not only reflects the Board's review of Defendant's rap sheet, but also their review of the prior Case Summary prepared in advance of his 2015 SORA hearing, which resulted in the level three adjudication. Moreover, although Defendant made a general objection to the sufficiency and reliability of the rap sheet for proof purposes, he did not specifically challenge the accuracy of his prior conviction.

In sum, the People met their burden of proving, by clear and convincing evidence, Defendant's previous conviction of a felony sex crime, resulting in the automatic application of the first override. Defendant did not request a downward departure.

Designation

Defendant did not challenge the recommendation by the Board and the People that he be designated a predicate sex offender. Under Correction Law § 168-a (7) (c), a predicate sex offender is a person "who has been convicted of an offense set forth in subdivision two or three of this section" and "has been previously convicted of an offense set forth in subdivision two or three of this section." Here, Defendant was previously convicted of third-degree rape in 2005, and forcible touching in 2002, both of which are encompassed within subdivision two (see Correction Law §§ 168-a [2] [a], [b]). And, his current conviction for forcible touching (Penal Law § 130.52 [1]) also falls within subdivision two because of these prior convictions (see Correction Law § 168-a [2] [c]).

Conclusion

This Court finds clear and convincing evidence demonstrating that Defendant should be assessed a total risk factor score of 55 points, but adjudicated a level three offender based on his previous conviction of a felony sex crime and the application of the first override. This Court further finds that Defendant is a predicate sex offender requiring lifetime registration.

The foregoing constitutes the Opinion, Decision and Order of the court.

DATED: September 1, 2022
ENTER
New York, New York
____________________________________
MICHAEL GAFFEY
JUDGE OF THE CRIMINAL COURT Footnotes

Footnote 1:Defendant was adjudicated a level three sex offender following this latter conviction.

Footnote 2: As indicated above, Defendant was already adjudicated a level three sex offender following his 2005 conviction for third-degree rape. Thus, even upon successful modification of his risk level in connection with this case, Defendant would nevertheless remain subject to the level three SORA requirements.