People v. Johnson

• Decision Date: 24 November 2008
• Docket Number: No. 166.,166.
• Parties: The PEOPLE of the State of New York, Respondent, v. Clarence A. JOHNSON, Appellant.
• Court: New York Court of Appeals Court of Appeals

900 N.E.2d 930

11 N.Y.3d 416

The PEOPLE of the State of New York, Respondent, v. Clarence A. JOHNSON, Appellant.

No. 166.

Court of Appeals of New York.

November 24, 2008.

Gary A. Horton, Public Defender, Batavia (Bridget L. Field of counsel), for appellant.

Lawrence Friedman, District Attorney, Batavia (David E. Gann of counsel), for respondent.

OPINION OF THE COURT

SMITH, J.

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 a sexual performance by a child, and was sentenced to 10 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 level one (low), level two (moderate) or level three (high) risk (see Correction Law § 168-n [2]; see also Correction Law § 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 1," and one who receives more than 70 but less than 110 is "presumptively level 2" (Board of Examiners of Sex Offenders, Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [Guidelines], at 3 [2006]). (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 (47 A.D.3d 140, 846 N.Y.S.2d 541 [2007]). This Court granted leave to appeal (10 N.Y.3d 706, 857 N.Y.S.2d 39, 886 N.E.2d 804 [2008]).

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 need for community notification ... is generally greater when the offender strikes at persons who do not know him well...." (Id. at 12 n. 8.)

But the truth of this generalization is not at all obvious when the offense in question is the possession of child pornography. Most people who commit such crimes never have any contact with the children whose images they look at. The unusual case where the offender and the children are acquainted would seem to present a greater threat to the community, not a lesser one. Bad as this defendant's conduct was, it would surely be worse—and defendant would seem a significantly more dangerous man—if he had been looking at pictures of his friends' or neighbors' children. Yet, under factor 7, previous acquaintance with the children would (unless one of the other facts listed in factor 7 were present) decrease defendant's risk score, not increase it. It does not seem that factor 7 was written with possessors of child pornography in mind.

Defendant asks us to read factor 7 in a way that would exclude him from its coverage. But we see no way to do that under the factor's plain language. Defendant's crime was unquestionably "directed at ... stranger[s]." Defendant argued to County Court that his crime was not "directed at" the children pictured in the images he possessed—i.e., that they were not his victims. But of course they were. The whole point of the child pornography statutes is to protect children like these from exploitation by pornographers—an exploitation to which defendant, by consuming the pornographers' product, contributed. As the Appellate Division pointed out, we have referred to provisions governing the age of children in child pornography statutes as "victim age provisions" (Matter of North v. Board of Examiners of Sex Offenders of State of N.Y., 8 N.Y.3d 745, 748, 871 N.E.2d 1133 [2007]); and the United States Supreme Court, in a case involving New York child pornography statutes, has referred to "the child victim" of such a crime (New York...