People v. Perez

• Decision Date: 26 March 2020
• Docket Number: No. 20,20
• Citation: 149 N.E.3d 1,35 N.Y.3d 85,125 N.Y.S.3d 308
• Parties: The PEOPLE of the State of New York, Respondent, v. Jose PEREZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

35 N.Y.3d 85

149 N.E.3d 1

125 N.Y.S.3d 308

The PEOPLE of the State of New York, Respondent,

v.Jose PEREZ, Appellant.

No. 20

Court of Appeals of New York.

March 26, 2020

OPINION OF THE COURT

FEINMAN, J.

We are called upon to determine whether defendant Jose Perez was properly assessed 30 points under risk factor 9 of the Sex Offender Registration Act (SORA) risk assessment instrument for his prior New Jersey conviction for lewdness. Drawing from our decision in North v. Board of Examiners of Sex Offenders of State of New York , 8 N.Y.3d 745, 840 N.Y.S.2d 307, 871 N.E.2d 1133 (2007), we hold that defendant's prior New Jersey conviction is tantamount to endangering the welfare of a child under New York law. Thus, an assessment of 30 points under risk factor 9 was warranted, and defendant's adjudication as a level two sex offender was correct.

I.

"[T]he purpose underlying SORA [is] to protect the public from sex offenders" ( People v. Mingo , 12 N.Y.3d 563, 574, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ). To that end, by legislative mandate, the New York Board of Examiners of Sex Offenders (the Board) has created specific "guidelines and procedures" designed to assess the risk that a sex offender will reoffend and the likely harm that would be inflicted upon the reoffense ( Correction Law § 168–l[5] ; People v. Sincerbeaux , 27 N.Y.3d 683, 691, 37 N.Y.S.3d 39, 57 N.E.3d 1076 [2016] ; see generally Sex Offender Registration Act, Risk Assessment Guidelines & Commentary, 2006 [hereinafter "Guidelines"] ). The Legislature provided the Board with broad authority to design the Guidelines by basing them, among other things, on "criminal history factors to be considered in determining risk, including .... the number, date, and nature of prior offenses" ( Correction Law § 168–l[5][b][iii] ).

In advance of a sex offender's release from prison, the Board must complete a risk assessment instrument, assessing points based on the risk factors set forth in the Guidelines, to recommend 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" ( People v. Francis , 30 N.Y.3d 737, 743, 71 N.Y.S.3d 394, 94 N.E.3d 882 [2018], citing Correction Law § 168–l[6] ). An offender's risk-level designation typically corresponds to the total number of points assigned for the 15 risk factors enumerated in the Guidelines (see Guidelines at 3).

The points system was designed to be objective yet "individualized," "eschew[ing] per se rules" (see Guidelines at 2–3). In keeping with this approach, if "special circumstances" are present, the Board or court may depart from the presumptive risk level corresponding to the offender's total risk assessment points score (see Guidelines at 4; People v. Howard , 27 N.Y.3d 337, 341, 33 N.Y.S.3d 132, 52 N.E.3d 1158 [2016], citing People v. Gillotti , 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ; People v. Johnson , 11 N.Y.3d 416, 421, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008] ). To that end, although the Board must rely on "clear and convincing evidence of the existence of [a] factor" in order to assess points, it need not rely only on "the crime of conviction" that subjects a defendant to registration under SORA, but may derive evidence from, among other things, "the sex offender's admissions; the victim's statements; the evaluative reports of the supervising probation officer, parole officer or corrections counselor; or ... any other reliable source" (Guidelines at 5; see also Mingo , 12 N.Y.3d at 576–577, 883 N.Y.S.2d 154, 910 N.E.2d 983, citing Correction Law § 168–n[3] ).¹

Risk factor 9 of the Guidelines, which concerns the "Number and Nature of Prior Crimes," provides that an offender must be assessed 30 points for, as relevant here, "a prior conviction or adjudication for ... a misdemeanor sex crime, or endangering the welfare of a child, or any adjudication for a sex offense" (Guidelines at 13; see also Correction Law § 168–l[5][b][iii] ). The rationale for assessing points for criminal history is that it bears strongly on offenders' "likelihood of sexual recidivism, particularly where [their] past includes violent crimes or sex offenses" (see Guidelines at 13).² With respect to endangering the welfare of a child—which is not a registrable sex offense under the Correction Law or one of the "sex offenses" listed under section 130 of the Penal Law—the Board assesses 30 points under risk factor 9 and presumptively treats such a conviction or adjudication "as if it were a sex crime because it generally involves sexual misconduct, especially when it is part of a plea bargained disposition" (see Guidelines at 14; Sincerbeaux , 27 N.Y.3d at 689, 37 N.Y.S.3d 39, 57 N.E.3d 1076 ; see also Mem from Div of Probation and Correctional Alternatives, dated July 21, 1995, Bill Jacket, L 1995, ch 192).³

II.

In 1999, defendant was convicted in New Jersey for lewdness in the fourth degree, a felony offense,⁴ for which he was sentenced to two years' probation (see N.J. Stat. Ann. § 2C:14–4 [b][1] ).⁵ The conduct underlying defendant's New Jersey conviction involved him "remov[ing] the towel that he had been wearing" in his home and "expos[ing] himself to the [12–year–old] victim via the adjacent window." Defendant blew kisses at the victim, who was located in a nearby apartment, and subsequently "exposed himself" two more times to the victim, her brother, and her cousin, also through a window. The record also reflects that defendant "fondl[ed] and strok[ed] his penis in view of [the victim] to sexually gratify himself." In 2003, defendant was convicted by guilty plea in Florida of felony lewd or lascivious molestation of a 10–year–old girl and sentenced to nine years' imprisonment (see Fla. Stat. § 800.04 [5][a], [b] ). Defendant admitted to the conduct underlying both of his New Jersey and Florida convictions.⁶

In November 2010, defendant was released from his Florida incarceration to the custody of New York authorities pursuant to a warrant issued in connection with the prosecution of two mid–1990s drug-related crimes. Defendant was thereafter sentenced in New York to prison. In advance of his conditional release from prison nearly two years later, defendant's risk level was assessed by the Board because his Florida felony conviction was a registrable sex offense in Florida qualifying him for SORA registration in New York (see Correction Law § 168–a[d][ii] ). After producing a case summary and completing a risk assessment instrument, the Board recommended that defendant be classified a level two sex offender based on a total risk assessment score of 85 points, including a 30–point assessment under risk factor 9 for his criminal history involving his prior New Jersey felony conviction for lewdness.⁷

At the SORA court hearing, defendant challenged the assessment of 30 points under risk factor 9, asserting that his New Jersey lewdness conviction was neither a registrable offense in New Jersey nor did the comparable offense under New York law—public lewdness (a misdemeanor)—subject defendant to SORA registration in New York (see Penal Law § 245.00[b][i] ). At the two-part hearing in the SORA court, the People asserted that they were requesting 30 points under risk factor 9 for "a prior conviction for a sexual crime." The People maintained that defendant's prior conviction involved, among other things, conduct within the scope of the New York offense of endangering the welfare of a child, which the Guidelines provide must receive an assessment of 30 points under risk factor 9. In doing so, the People relied on the Board's risk assessment instrument for defendant and case summary prepared in connection therewith, defendant's NYSID sheet containing his entire criminal record, including his prior New Jersey "conviction for lewdness[,]" New Jersey investigation and arrest reports for the New Jersey incident leading to defendant's conviction, including a narrative from an officer who responded to the incident, a certified copy of a transcript of an interview with the 12–year–old victim by a police lieutenant, an arrest warrant for defendant, and defendant's sex offender details page with the New York Division of Criminal Justice Services, among other things. The People also noted that they had received and were relying upon "the judgment and conviction for [defendant's New Jersey] offense" from the Lyndhurst Police Department. Defense counsel, in turn, referred to the judgment produced by the People and, at one point, quoted from NJ Stat Ann § 2C:14–4(b)(1), noting "[t]hat document says that [defendant] did expose his intimate parts for purpose of arousing or gratifying the sexual desire of the actor under the circumstances where the actor knew or reasonably expected he was likely to be observed by a child who is less than 13 years of age."

The SORA court adopted the Board's recommendation. The court accepted the People's reasoning that the "conduct underlying [the] conviction ... was considered sexual in nature" and that "the female complainant was 12 years of age at the time of the incident." The SORA court deemed "irrelevant" the proposition that defendant's New Jersey felony conviction would constitute a misdemeanor in New York. The Appellate Division affirmed but, unlike the SORA court, concluded that defendant's New Jersey conviction of lewdness in the fourth degree was a "misdemeanor sex crime" warranting 30 points under risk factor 9 of the Guidelines ( 162 A.D.3d 1083, 80 N.Y.S.3d 121 [2d Dept. 2018] ). This Court granted defendant leave to appeal ( 32 N.Y.3d 1042, 88 N.Y.S.3d 400, 113 N.E.3d 456 [2018] ), and we now affirm on different grounds.

III.

The issue here arises from a gap in the Guidelines and the Correction Law, which fail to specifically account for the impact of out-of-state convictions when considering the import of sex offenders' criminal history for purposes of...