People v. Johnson

76 Misc.3d 950

174 N.Y.S.3d 560

The PEOPLE of the State of New York,

v.JOHNSON, Defendant

Docket No. CR-005869-20NY

Criminal Court, City of New York, New York County.

Decided on September 1, 2022

Shari Vrod and Joshua White for the Defendant.

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 ).¹ Accordingly, following his June 4, 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, 31 N.Y.S.3d 830 [Crim Ct, N.Y. 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 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 A.D.3d 68, 78, 60 N.Y.S.3d 169 [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, 60 N.Y.S.3d 169, citing People v. Wyatt , 89 A.D.3d 112, 127, 931 N.Y.S.2d 85 [2d Dept. 2011] ; see also People v. Watts , 58 Misc. 3d 552, 64 N.Y.S.3d 505 [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, 64 N.Y.S.3d 505 ). 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 A.D.3d at 78, 60 N.Y.S.3d 169 ["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, 60 N.Y.S.3d 169 ; Watts , 58 Misc. 3d at 556, 64 N.Y.S.3d 505 ).²

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 N.Y.3d 563, 883 N.Y.S.2d 154, 910 N.E.2d 983 [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 N.Y.3d at 574-576, 883 N.Y.S.2d 154, 910 N.E.2d 983 ). Below, the court will address all 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....