People v. Francis

• Decision Date: 13 February 2018
• Docket Number: No. 4,4
• Parties: The PEOPLE of the State of New York, Respondent, v. Jude FRANCIS, Appellant.
• Court: New York Court of Appeals Court of Appeals

30 N.Y.3d 737

94 N.E.3d 882

71 N.Y.S.3d 394

The PEOPLE of the State of New York, Respondent,

v.Jude FRANCIS, Appellant.

No. 4

Court of Appeals of New York.

Decided February 13, 2018

Appellate Advocates, New York City (Jenin Younes and Lynn W.L. Fahey of counsel), for appellant.

Eric Gonzalez, District Attorney, Brooklyn (Anthea H. Bruffee and Leonard Joblove of counsel), for respondent.

Michael C. Pope, Youth Represent, New York City (Saskia Valencia and Eric Eingold of counsel), and Judy M. Whiting, General Counsel, Community Service Society, New York City, for Youth Represent and another, amici curiae.

Eric T. Schneiderman, Attorney General, New York City (Eric Del Pozo, Barbara D. Underwood and Steven C. Wu of counsel), for New York State Board of Examiners of Sex Offenders, amicus curiae.

OPINION OF THE COURT

RIVERA, J.

On this appeal, defendant challenges his designation as a level three sex offender pursuant to New York's Sex Offender Registration Act (SORA), claiming that the State Board of Examiners of Sex Offenders (Board) may not consider his youthful offender (YO) adjudication when assessing his risk to reoffend. Defendant maintains that the Board's interpretation of its authority under SORA conflicts with the Criminal Procedure Law's youthful offender provisions. We disagree. The statutes do not prohibit the Board's consideration of YO adjudications for the limited public safety purpose of accurately assessing an offender's risk level. Nor does the Board's interpretation undermine the legislative policy of avoiding stigmatizing a young person with a criminal record. As the Board's consideration of a YO adjudication does not conflict with the CPL, its risk level recommendation could be relied upon by the SORA court. We therefore affirm the Appellate Division's order.

I. Relevant Statutory Frameworks

This appeal implicates the question of whether the Board acted ultra vires in issuing guidelines for determining sex offender risk of re-offense that automatically treat a YO adjudication as part of the offender's criminal history factors, notwithstanding that a YO adjudication is not a conviction. "As our well-established rules of statutory construction direct, we begin our analysis with the language of the statute" ( Beck Chevrolet Co. v. Gen. Motors LLC, 27 N.Y.3d 379, 389–390, 33 N.Y.S.3d 829, 53 N.E.3d 706 [2016] ; see also People v. Andujar, 30 N.Y.3d 160, 163, 66 N.Y.S.3d 151, 88 N.E.3d 309 [2017] ; People v. Ocasio, 28 N.Y.3d 178, 181, 43 N.Y.S.3d 228, 65 N.E.3d 1263 [2016] ), because our primary consideration is to ascertain the legislature's intent, of which "the text itself is generally the best evidence" ( People v. Ballman, 15 N.Y.3d 68, 72, 904 N.Y.S.2d 361, 930 N.E.2d 282 [2010] ; see also Desrosiers v. Perry Ellis Menswear, LLC, 30 N.Y.3d 488, 68 N.Y.S.3d 391, 90 N.E.3d 1262 [2017] ).

A. New York's Youthful Offender Statute: Criminal Procedure Law Article 720

The legislature has provided an alternative to adult sentencing for certain young people who commit crimes between the ages of 16 and 19 years old. Pursuant to Criminal Procedure Law (CPL) article 720, when an "eligible youth" is convicted of a crime, the court determines whether the youth should be designated a "youthful offender."¹ Where such designation is not mandated by CPL 720.20 (1) (b), the court may, in its discretion, decide whether "the interest of justice would be served by relieving the eligible youth from the onus of a criminal record" ( CPL 720.20 [1 ] [a] ). Once a young person is designated a youthful offender, the court "must direct that the conviction be deemed vacated and replaced by a youthful offender finding" and then "sentence the defendant pursuant to section 60.02 of the penal law" ( CPL 720.20 [3 ] ).

As stated in the CPL, a YO adjudication is "not a judgment of conviction for a crime or any other offense" ( CPL 720.35 [1 ] ). The statute thus codifies the "legislative desire not to stigmatize [these] youths ... with criminal records triggered by hasty or thoughtless acts" ( People v. Drayton, 39 N.Y.2d 580, 584, 385 N.Y.S.2d 1, 350 N.E.2d 377 [1976] ). As we have recognized, a YO adjudication is nothing short of "the opportunity for a fresh start, without a criminal record"; an opportunity that a "judge would conclude ... is likely to turn the young offender into a law-abiding, productive member of society" ( People v. Rudolph, 21 N.Y.3d 497, 501, 974 N.Y.S.2d 885, 997 N.E.2d 457 [2013] ).

To maximize protection against public opprobrium and the stigma of a criminal record, all YO–related "official records and papers ... are confidential and may not be made available to any person or public or private agency" ( CPL 720.35 [2 ] ). However, access is available where "specifically required or permitted by statute or upon specific authorization of the court" ( CPL 720.35 [2 ] ), as well as for those purposes and to those individuals and entities identified in the YO statute.² Department of Corrections and Community Supervision (DOCCS) personnel—of which the Board is composed—are expressly listed as having access to YO records "for the purpose of carrying out duties specifically authorized by law" ( CPL 720.35 [2 ] ).

B. New York's Sex Offender Registration Act (SORA)

Persons who commit certain sex offenses must comply with New York SORA's mandate to register with the State Division of Criminal Justice Services, which maintains the publicly-available Sex Offender Registry (Correction Law art 6– C). As the legislative history establishes, the "primary government interest" underlying SORA is the protection of the public from sex offenders (see L 1995, ch 192, § 1 ["Legislative purpose or findings"]; People v. Mingo, 12 N.Y.3d 563, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ). More specifically, the statutory structure is intended to address "the danger of recidivism posed by sex offenders" and the investigatory and prosecutorial challenges faced by law enforcement agencies (L 1995, ch 192, § 1 ["Legislative purpose or findings"]; Correction Law § 168 et seq. ).³ To that end, a sex offender's risk of reoffense is assessed, and that information is provided to law enforcement and the public.

The legislature charged the Board with recommending 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 ( Correction Law § 168–l [6 ] ).⁴ SORA mandates that the Board, comprised of five DOCCS employees who are "experts in the field of the behavior and treatment of sex offenders" ( id. § 168–l [1 ] ), "shall develop guidelines and procedures to assess [a sex offender's] risk of a repeat offense" ( id. § 168–l [5 ] ).⁵ While SORA contemplates the Board would exercise discretion in developing this assessment tool, SORA requires that the Guidelines be based, in part, on a non-exhaustive list of conditions related to the potential risk of reoffense, including "criminal history factors" such as "the number, date and nature of prior offenses" ( id. § 168–l [1 ]–[5], [5] [b] [iii] ). In 2006, the Board issued the current Sex Offender Registration Act: Risk Assessment Guidelines and Commentary (the Guidelines), which, in tandem with the Board's risk assessment instrument (RAI), reflects the Board's choice "to create an objective assessment instrument that would provide a risk level combining risk of reoffense and danger posed by a sex offender" (Guidelines at 3). The Board adopted a point scale, "assigning numerical values to each risk factor ... [and t]he presumptive risk level is then calculated by adding the points that the offender scores in each category" (id. ). For each person subject to SORA registration, the Board provides the SORA court—which has the ultimate responsibility of designating the offender's risk level—with an RAI and a case summary along with the Board's recommended risk level.

At the SORA hearing to determine the offender's risk level classification, the offender and the People may each present evidence to the SORA court in support of their positions as to the point assessment and risk level determination, and both parties, as well as the Board, may request a departure from the presumptive risk level indicated by the offender's total score (id. § 168–n). The SORA court may consider a broad range of evidence to determine an offender's proper risk level designation. As this Court explained in Mingo, admissible evidence includes case summaries and the Board's RAI, because such documents "certainly meet the ‘reliable hearsay’ standard for admissibility at SORA proceedings" (12 N.Y.3d at 573, 883 N.Y.S.2d 154, 910 N.E.2d 983 ). The SORA court must apply the Guidelines, and either accepts the Board's recommendation or departs from it and assigns a different risk level classification ( Correction Law § 168–n [2 ]; see also People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). Thus, "the Board's duty is to ‘make a recommendation to the [SORA] court’ ... and the court, applying a clear and convincing evidence standard, is to make its determination after considering that recommendation, and any other materials properly before it" ( People v. Johnson, 11 N.Y.3d 416, 421, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008] ).

II. Factual and Procedural History of Defendant's SORA Risk Designation

Defendant Jude Francis was convicted in 2005 of first-degree rape, which he committed at the age of 19. He thereby became subject to SORA's sex offender registration requirements (see Correction Law § 168–f ). Pursuant to the Guidelines, the Board's RAI gave defendant a score of 115 points, including 25 points for defendant's "criminal history" factors, based solely on his YO adjudication for third-degree criminal possession of stolen property, committed when he was 17 years old.⁶ The Board's case summary stated that defendant's criminal history "commenced in February 2001 when he was adjudicated a [YO]...