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People v. Johnson

November 24, 2008

THE PEOPLE & C., RESPONDENT,
v.
CLARENCE A. JOHNSON, APPELLANT.



The opinion of the court was delivered by: Smith, 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.

This case requires us to consider one of the risk factors used by the Board of Examiners of Sex Offenders (Board) to help courts assess the danger that convicted sex offenders pose to the community. Defendant, whose crime consists of possessing pornographic images of children, argues that the Board's Factor 7, indicating an increased level of risk when a crime "was directed at a stranger," should be interpreted in a way that makes it inapplicable to his case.

Defendant's proposed reading of Factor 7 is a strained one, and we reject it. It may well be that, in cases involving the possession of child pornography, the absence of a previous relationship between the offender and the children pictured does not normally heighten the risk the offender presents to the community. However, the way for courts to avoid anomalous results is not to distort the plain meaning of the Board's risk factors, but to exercise their discretion to depart from the result indicated by the risk factors in cases where that result does not make sense.

I.

Defendant had on his computer pornographic images of children who were strangers to him. He pleaded guilty in County Court to attempted promoting of a sexual performance by a child, and was sentenced to ten years probation. His conviction required him to register under the Sex Offender Registration Act (SORA) (Correction Law art 6-C), and County Court was required by SORA to decide whether defendant presented a 1evel one (low), level two (moderate) or level three (high) risk (see Correction Law § 168-n [2]; see also 168-l [6]). The choice here was between level one and level two. The chief practical difference between them is that the identity of a level two offender is made available to the public (see Correction Law §§ 168-l [6] [b], 168-q).

County Court found defendant to be a level two offender, relying on a numerical calculation made by the Board. The Board made this calculation using its Risk Assessment Guidelines, which consist of 15 risk factors, each carrying a certain number of points. An offender who receives a score of 70 points or less is "presumptively level one," and one who receives more than 70 but less than 110 is "presumptively level 2" (Board of Examiners of Sex Offenders, Risk Assessment Guidelines and Commentary [Guidelines], at 3). (The point totals are subject to "overrides," not involved in this case, which automatically yield a presumptive level three designation [id.].)

In defendant's case, the Board recommended, and County Court adopted, an assessment of 100 points, but the Appellate Division later found, and the People do not dispute, that 20 of them were assessed in error. Of the remaining 80 points, 20 were assessed under Factor 7, and the Appellate Division found that these points were proper. Based on the 80 point total, the Appellate Division affirmed County Court's designation of defendant as a level two offender. This Court granted leave to appeal.

II.

Factor 7 reads in full as follows:

"Factor 7: Relationship Between Offender and Victim

"The offender's crime (i) was directed at a stranger or a person with whom a relationship had been established or promoted for the primary purpose of victimization or (ii) arose in the context of a professional or avocational relationship between the offender and the victim and was an abuse of that relationship (20 pts)"

Subsection (i) of Factor 7 reflects the Legislature's command that the Board consider, among other things, whether an offender has a condition that makes him "likely to engage in predatory sexually violent offenses" (Correction Law § 168-l [5] [a] [i]). The subsection tracks the legislative definition of the word "predatory": "an act directed at a stranger, or a person with whom a relationship has been established or promoted for the primary purpose of victimization" (Correction Law § 168-a [9]).

The Legislature's and the Board's concern with sex offenders who direct their crimes at strangers is easily understandable, in the ordinary case. Most sex crimes involve criminals who subject their victims to sexual contact without the victims' consent, and people who do that to people they do not know pose a special danger to the community they present, in the words of the Board's Commentary on Factor 7, "a heightened concern for public safety and need for community notification" (Guidelines, at 12). In a footnote to this remark, the Board states an obvious truth: "the ...


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