People v. Brown

209 N.Y.S.3d 289

232 N.E.3d 1223

41 N.Y.3d 279

The PEOPLE of the State of New York, Respondent,

v.Marcus BROWN, Appellant.

Court of Appeals of New York.

Decided November 21, 2023

Patricia Pazner, Appellate Advocates, New York City (Ava C. Page of counsel), for appellant.

Melinda Katz, District Attorney, Kew Gardens (William H. Branigan and John M. Castellano of counsel), for respondent.

Emery Celli Brinckerhoff Abady Ward & Maazel, LLP, New York City (David B. Berman of counsel), Caprice Jenerson, Office of the Appellate Defender, New York City (Will A. Page of counsel), Twyla Carter, The Legal Aid Society, New York City (David Loftis of counsel), and Jenay Nurse Guilford, Center for Appellate Litigation, New York City (Nicole P. Geoglis of counsel), for Office of the Appellate Defender and others, amici curiae.

OPINION OF THE COURT

RIVERA, J.

₂₈₁Defendant stole money at gunpoint from his aunt in the presence of his 10–year–old cousin for which he pleaded guilty to, inter alia, the unlawful imprisonment of the child. For this crime, New York requires that he register as a sex offender and comply with the Sex Offender Registration Act (SORA). It is undisputed that the crime was non-sexual and that the SORA court found that defendant is not a sex offender and poses no sexual threat. Nevertheless, the courts below felt constrained by People v. Knox, 12 N.Y.3d 60, 875 N.Y.S.2d 828, 903 N.E.2d 1149 (2009) to impose SORA requirements. Defendant contends that the holdings in Knox and its companion cases are distinguishable and do not control his as-applied challenge. We agree and conclude that requiring defendant to register violates his due process rights and does nothing to further the legislative purpose of SORA to protect the public from actual sex offenders. The order of the Appellate Division should be reversed.

₂₈₂I.

Defendant Marcus Brown pleaded guilty to robbery in the first degree (Penal Law § 160.15[4]) and other counts including, as relevant to this appeal, unlawful imprisonment in the first degree (§ 135.10) based on allegations that he robbed his aunt at gunpoint in her home where his 10–year–old cousin was present. Unlawful imprisonment of a minor when the offender is not the parent of the victim is a SORA-eligible crime and brings defendant within the statutory definition of "sex offender" which, in turn, subjects defendant to mandatory sex offender registration, even where the crime, in fact, lacks a sexual act or motive, and where defendant poses no risk of future harm to children (Correction Law § 168–a [2][a][i]).

Prior to defendant’s release from incarceration, the Board of Examiners of Sex Offenders (Board) prepared a case summary and Risk Assessment Instrument, and assessed 90 points against defendant, for a presumptive level two (moderate) risk to reoffend designation.¹ In advance of the SORA proceedings, the Department of Corrections and Community Supervision (DOCCS) indicated that it had determined that "defendant need not be referred to any sex counseling and treatment program due to the nonsexual nature of the offense committed."

Before the SORA court, defendant claimed, in part, that requiring him to register as a sex offender for a crime with no sexual conduct or motivation was unconstitutional as applied to him and defied the purpose of the registry. Defendant argued that People v. Knox and its companion cases were distinguishable on the grounds that his cousin was not the target of the offense and his cousin was not abused, abducted, or detained for days.

The prosecution conceded that defendant’s offense had no sexual component, but nevertheless argued that registration was mandatory under Knox and that the court should designate₂₈₃ defendant a level two risk. Based on the record, the SORA court found that defendant’s sole motivation was to steal money and that the offense involved "no sexual contact or motivation" whatsoever. The court further found that defendant was not a "sex offender" "and that he posed no risk of sexual threat at all." Nevertheless, the court determined that it was "constrained by state law" under Knox to mandate defendant’s registration. But the court granted defendant a downward departure to level one—the lowest risk level under SORA—because the Board "greatly overestimated" defendant’s "risk of being a sexual offender."

The Appellate Division affirmed, concluding that defendant’s constitutional challenge was without merit, citing Knox and departmental precedent (203 A.D.3d 1183, 163 N.Y.S.3d 440 [2d Dept. 2022], citing People v. Marshall, 195 A.D.3d 961, 146 N.Y.S.3d 527 [2d Dept. 2021]; People v. Douglas, 189 A.D.3d 1276, 134 N.Y.S.3d 208 [2d Dept. 2020]; People v. Suarez, 147 A.D.3d 802, 45 N.Y.S.3d 801 [2d Dept. 2017]; People v. Edney, 143 A.D.3d 793, 38 N.Y.S.3d 817 [2d Dept. 2016]; People v. Taylor, 42 A.D.3d 13, 835 N.Y.S.2d 241 [2d Dept. 2007]). We granted leave to appeal (38 N.Y.3d 911, 172 N.Y.S.3d 423, 192 N.E.3d 351 [2022]), and now reverse.

II.

Defendant’s Due Process As–Applied Challenge

[1, 2] Defendant claims that requiring him to register as a sex offender when he never engaged in sexual misconduct is not rationally related to the government’s interest in protecting the public from sex offenders.² He maintains that his underlying offense is factually distinguishable from Knox and its companion cases because defendant committed a financially-motivated robbery in which the child victim was related to ₂₈₄him, was not the target of the crime, was not abducted, and was detained only for a short period of time. Further, defendant asserts that the Knox Court’s concerns about dangerous sex offenders escaping registration do not apply to him because, here, there was an uncontested judicial finding that he presents no sexual risk. In response, the District Attorney relies on Knox as controlling precedent and asserts that in that case the Court found a rational relationship between the State’s goal of protecting children and SORA’s automatic registration of persons convicted of kidnapping-related offenses—even where the offense lacks a sexual component.³

[3, 4] "As the term implies, an as-applied challenge calls on the court to consider whether a statute can be constitutionally applied to the defendant under the facts of the case" (People v. Stuart, 100 N.Y.2d 412, 765 N.Y.S.2d 1, 797 N.E.2d 28 [2003]). We agree with defendant that the sex offender designation and SORA’s mandatory registration as applied to him is not rationally related to SORA’s purpose of protecting the public from sex offenders and thus violates his due process rights.

A.

SORA labels as "sex offenderis)" all persons convicted of a "kidnapping offense[ ], provided the victim of such kidnapping related offense is less than seventeen years old and the offender is not the parent of the victim" (Correction Law § 168–a [1]-[2][a][i], citing Penal Law §§ 135.05 [second-degree unlawful imprisonment], 135.10 [first-degree unlawful imprisonment], 135.20 [second-degree kidnapping], 135.25 [first-degree kidnapping]). In Knox and its two companion cases, the Court ₂₈₅rejected a constitutional challenge to these provisions. Thus, we must first determine whether the holding and rationale of Knox foreclose defendant’s claim.

All three appeals in Knox involved defendants subject to SORA as a result of their convictions for attempted or completed child kidnapping and unlawful imprisonment crimes even though there was no proof that their crimes involved any sexual act or motive. The defendant in Knox was convicted after she approached an eight-year-old girl in a park and tried to pull her away, apparently in an attempt to replace her own child after recently losing custody (12 N.Y.3d at 64, 875 N.Y.S.2d 828, 903 N.E.2d 1149). Knox pleaded guilty to attempted kidnapping. In People v. Cin- iron, the defendant had a long history of "violent conduct, including sexual violence" and a conviction for sexual misconduct based on forced intercourse with a 16–year–old (id. at 70, 875 N.Y.S.2d 828, 903 N.E.2d 1149). The defendant locked his girlfriend and her two children inside their apartment for several days after an argument and was convicted of unlawful imprisonment of each child (id. at 64, 875 N.Y.S.2d 828, 903 N.E.2d 1149). In People v. Jackson, the defendant abducted and threatened to kill the son of a woman if she did not continue to work for him as a prostitute (id.). Like Knox, he pleaded guilty to attempted kidnapping.

The defendants each challenged their SORA designations on substantive due process grounds. The Court concluded that the defendants had a "constitutionally protected liberty interest" for purposes of substantive due process "in not being required to register under an incorrect label" (12 N.Y.3d at 66, 875 N.Y.S.2d 828, 903 N.E.2d 1149). The Court further concluded that because this interest was not fundamental in the constitutional sense, the defendants’ constitutional claims were subject to deferential rational basis review (id. at 67, 875 N.Y.S.2d 828, 903 N.E.2d 1149). Under that test, the law must be rationally related to a legitimate governmental interest (id).

The Court held that mandatory sex offender registration of non-parent defendants convicted of kidnapping or unlawful imprisonment of victims under 17 years old is rationally related to the legitimate governmental interest of protecting minors from those "who have shown themselves capable of committing sex crimes" against children (id). The Court explained that the Legislature passed SORA to comply with the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, which, in part, conditioned federal funding on the state’s enactment of a system to register sexual offenders and persons who commit crimes against ₂₈₆children (id. at 67–68, 875 N.Y.S.2d 828, 903 N.E.2d 1149).⁴ The Court noted that the federal law does not require the "sex offender" designation of persons convicted of kidnapping and...