People v. Bullock

*3OPINION OF THE COURT

In 2008, defendant was convicted in North Carolina of sexual battery. Based on his relocation to New York, the Board of Examiners of Sex Offenders (Board) determined that defendant was required to register under the Sex Offender Registration Act (SORA) (Correction Law art 6-C) and recommended that he be designated a level one sex offender. Finding that the North Carolina conviction was the equivalent of sexual abuse in the first degree, a sexually violent offense under Correction Law § 168-a (3), Supreme Court found that it was compelled to adjudicate defendant a level one sexually violent offender (see Correction Law § 168-a [7] [b]), which subjects him to lifetime registration with the Division of Criminal Justice Services (Correction Law § 168-h [2]).

On this appeal, defendant argues that his North Carolina conviction of sexual battery is not comparable to a conviction in New York State for sexual abuse in the first degree, and that he is not required to register under SORA. He also argues that the court erred when it concluded that it lacked the discretion to deviate from the sexually violent offender designation. For the reasons that follow, we find these arguments unavailing.

Defendant is required to register as a sex offender in New York under SORA on the basis of his North Carolina conviction of sexual battery, which includes the essential elements of sexual abuse in the first degree (Penal Law § 130.65 [1]). The essential elements requirement may be satisfied when “the conduct underlying the foreign conviction ... is, in fact, within the scope of the New York offense” (Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745, 753 [2007]). Regardless of whether the North Carolina statute could be viewed as criminalizing some conduct that might not be covered by the New York statute, clear and convincing evidence supports the conclusion that in the North Carolina case defendant forcibly subjected another person to sexual contact for the purpose of sexual gratification (see Penal Law § 130.00 [3]).

Defendant was properly adjudicated a sexually violent offender. Sexual abuse in the first degree is deemed a “sexually violent offense” under Correction Law § 168-a (3) (a), and a person who commits that crime — or the equivalent — is defined as a sexually violent offender under Correction Law § 168-a (7) (b).

*4Departing from established precedent of the Appellate Divisions, the dissent would adopt defendant’s argument that a court has the discretion to decline to designate a defendant a sexually violent offender, even where he or she falls within the statutory definition, and would remand to Supreme Court for a de novo determination of defendant’s designation, giving due consideration to the recommendation of the Board. We disagree.

When a sex offender from another state has established residence in New York, “[t]he board shall determine whether the sex offender is required to register with the division [of criminal justice services]” (Correction Law § 168-k [2]). Pursuant to the 2002 amendments to SORA, Correction Law §§ 168-k and 168-l were amended to require the Board to recommend and a court to determine whether the offender is a sexual predator, sexually violent offender, or predicate sex offender. The court must also determine the level of community notification that will be assigned (see L 2002, ch 11, §§ 15, 17).

The amended section 168-k (2) provided:

“After reviewing any information obtained, and applying the guidelines established in subdivision five of section one hundred sixty-eight-1 of this article, the board shall within sixty calendar days make a recommendation regarding the level of notification pursuant to subdivision six of section one hundred sixty-eight-1 of this article and whether such sex offender shall be designated a sexual predator, sexually violent offender, or predicate sex offender as defined in subdivision seven of section one hundred sixty-eight-a of this article. ... It shall be the duty of the county court or supreme court in the county of residence of the sex offender, applying the guidelines established in subdivision five of section one hundred sixty-eight-1 of this article, to determine the level of notification pursuant to subdivision six of section one hundred sixty-eight-1 of this article and whether such sex offender shall be designated a sexual predator, sexually violent offender, or predicate sex offender as defined in subdivision seven of section one hundred sixty-eight-a of this article” (former Correction Law *5§ 168-k [2]).*

The amended section 168-l (6) provided:

“Applying these guidelines, the board shall within sixty calendar days prior to the discharge, parole, release to post-release supervision or release of a sex offender make a recommendation which shall be confidential and shall not be available for public inspection, to the sentencing court as to whether such sex offender warrants the designation of sexual predator, sexually violent offender, or predicate sex offender as defined in subdivision seven of section one hundred sixty-eight-a of this article. In addition, the guidelines shall be applied by the board to make a recommendation to the sentencing court which shall be confidential and shall not be available for public inspection, providing for one of the following three levels of notification depending upon the degree of the risk of re-offense by the sex offender” (former Correction Law § 168-l [6]).

“While [the] Court is directed to apply SORA’s Risk Assessment Guidelines in making both determinations . . . , the statutory definition of sexually violent offender, namely, a sex offender convicted of one of several enumerated sexually violent offenses, does not allow for a discretionary determination” (People v Lockwood, 308 AD2d 640, 640 [3d Dept 2003]). Thus, although the “level suggested by the RAI [risk assessment instrument] is merely presumptive and a SORA court possesses the discretion to impose a lower or higher risk level if it concludes that the factors in the RAI do not result in an appropriate designation” (People v Mingo, 12 NY3d 563, 568 n 2 [2009]; see also People v Pettigrew, 14 NY3d 406, 409 [2010]), the Court of Appeals has observed that

“since 2002, SORA has compelled a defendant convicted of a ‘sexually violent offense’ to register at least annually for life (Correction Law § 168-h *6[2]; see Correction Law § 168-a [3] [a]; [7] [b]; L 2002, ch 11, § 13). The same is true of a predicate sex offender — a person who is convicted of a sex offense or sexually violent offense after having previously been convicted of such an offense (Correction Law § 168-a [7] [c]; § 168-h [2]). But for others, the registration period depends on the risk level designation that is assigned at the SORA proceeding — level one, evidencing a low risk of reoffense, level two, a moderate risk, and level three, a high risk. Individuals determined to have the lowest risk of reoffense — level one offenders — are relieved of the duty to register after 20 years while level two and three offenders must register at least once each year for life (Correction Law § 168-h)” (People v Mingo, 12 NY3d at 570-571 [footnotes omitted]).

Consistent with this view, in People v Williams (96 AD3d 421, 422 [1st Dept 2012], lv denied 19 NY3d 813 [2012]), this Court held that a sexually violent offender “designation was required by statute” because the defendant pleaded guilty to “an enumerated sexually violent offense” (see also People v Bunger, 78 AD3d 1433, 1434 [3d Dept 2010], lv denied 16 NY3d 710 [2011] [“inasmuch as defendant’s conviction for rape in the first degree is deemed a sexually violent offense for the purposes of the Sex Offender Registration Act. . . we conclude that he was properly classified as a sexually violent offender”]; People v Ayala, 72 AD3d 1577, 1578 [4th Dept 2010], lv denied 15 NY3d 816 [2010] [“(p)ursuant to Correction Law § 168-a (3), defendant is a sexually violent offender by virtue of his 1986 conviction of sodomy in the first degree”]).

The dissent would abandon this established precedent, concluding that the prior decisions of the Appellate Divisions did not engage in an adequate analysis of SORA and that read in the context of the entire statutory scheme, such statutory definition serves as a threshold consideration as to whether a sex offender is eligible to be classified as a sexually violent offender. In support, the dissent emphasizes that section 168-Z (6) provides that “[a]pplying these guidelines,” the Board makes a recommendation “to the sentencing court as to whether such sex offender warrants the designation of sexual predator, sexually violent offender, or predicate sex offender as defined in subdivision seven of section one hundred sixty-eight-a of this article” and that section 168-n (1) states that after receiving the recommendation the court shall make its determination on *7the issue “applying the guidelines.” The dissent reasons that the use of the term “warrants” and reference to the guidelines establish that the court has the discretion to determine whether a defendant should be designated a sexually violent offender.

However, that statute only details the procedure for SORA adjudications, describing how after the Board indicates whether a defendant is a sexually violent offender, a court conducts a hearing in which it reviews the Board’s recommendations and officially pronounces the defendant’s designation. While the court is not bound by the recommendation of the Board, there is nothing in the language of the Correction Law that states that the court has discretion to not designate as sexual predators, sexually violent offenders or predicate sex offenders those defendants who meet the respective statutory definitions.

In essence, the dissent is trying to equate the nondiscretionary role of the court to designate sexual predators, sexually violent offenders and predicate sex offenders, who are defined by statute, with the Board’s assessment of points against an offender. However, the assessment of points gives the court the authority to conclude an upward or downward departure is appropriate where circumstances warrant (see generally People v Gillotti, 23 NY3d 841 [2014]). In Gillotti, the Court of Appeals explained:

“Under SORA, a court must follow three analytical steps to determine whether or not to order a departure from the presumptive risk level indicated by the offender’s guidelines factor score. At the first step, the court must decide whether the aggravating or mitigating circumstances alleged by a party seeking a departure are, as a matter of law, of a kind or to a degree not adequately taken into account by the guidelines . . . . At the second step, the court must decide whether the party requesting the departure has adduced sufficient evidence to meet its burden of proof in establishing that the alleged aggravating or mitigating circumstances actually exist in the case at hand .... If the party applying for a departure surmounts the first two steps, the law permits a departure, but the court still has discretion to refuse to depart or to grant a departure. Thus, at the third step, the court must *8exercise its discretion by weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over- or under-assessment of the defendant’s dangerousness and risk of sexual recidivism” (23 NY2d at 861).

The court does not have such discretion, however, where the sex offenses are defined by statute.

This interpretation is consistent with statements in the legislative history of the 2002 amendments which demonstrates that the purpose of the bill was to bring SORA into full compliance with federal statutes (see Mem of Senator Dean G. Skelos, 2002 NY Legis Ann at 396; see also Budget Rep on Bills, Bill Jacket, L 1995, ch 192 at 17). The Budget Report explained:

“In order to remain eligible for full Federal Byrne Formula Grant funding, New York must demonstrate compliance with the Jacob Wetterling Crimes against Children and Sexually Violent Offender Registration Program (Wetterling Act), the Pam Lychner Sexual Offender Tracking and Identification Act of 1996 (Lychner Act), section 115 of the General Provisions of Title I of the Departments of Commerce, Justice and State, the Judiciary, and Related Agencies Appropriations Act (CJSA) and the Campus Sex Crimes Prevention Act. The provisions of the bill will satisfy the necessary requirements including:

“• The Lychner Act mandates lifetime registration for recidivists and aggravated offenders. This bill amends New York’s registration requirements to ensure lifetime registration for these offenders.

“• CJSA .... also requires a state to prescribe a heightened registration requirement for sexually violent predators. This bill meets this criteria by defining sexual predators and requiring these offenders to register for life and personally verify their residence address every 90 days” (Budget Rep on Bills, Bill Jacket, L 2002, ch 192 at 5).

The Governor’s Program Bill Memorandum No. 102 explains:

“The Lychner Act mandates lifetime registration for recidivists and aggravated offenders: A state *9may not demonstrate compliance with the Lychner Act if it allows such an offender to be relieved of the lifetime registration requirement. Currently, the Sex Offender Registration Act only provides for lifetime registration for those offenders designated a level 3 risk. The risk level is assigned by the sentencing court and the court is not obligated to designate an offender a level 3 in cases where the offender has committed an aggravated offense or is a repeat offender” (L 2002, ch 11, Governor’s Program Bill Mem No. 102, 2002 NY Legis Ann at 7).

Nor is the result that a level one offender will be subjected to lifetime registration anomalous. The statute plainly requires risk-level-one offenders to be designated sexually violent offenders when they commit enumerated sexually violent offenses (Correction Law § 168-a [3] [a], [b]; [7] [b]; see People v Argueta, 114 AD3d 651 [2d Dept 2014] [granting a downward departure from a risk level of two to a risk level of one, but noting that the defendant would remain a sexually violent offender subject to lifetime registration]). In this regard, we note that although sexually violent level one offenders must register for life, their names are not publicly available on the Internet Directory maintained by the Division, which contains information relating to level two and three offenders (see Correction Law § 168-q [1]). Rather, the public can obtain information about a specific level one offender by calling a toll-free telephone number maintained by the Division (see Correction Law § 168-p [1]).

We have considered and rejected defendant’s remaining arguments, including those addressed to any alleged differences between the risk assessment instrument and the court’s findings.

Accordingly, the order of the Supreme Court, New York County (Roger S. Hayes, J.), entered on or about July 6, 2012, which adjudicated defendant a level one sexually violent offender pursuant to SORA, should be affirmed, without costs.