People v. Johnson, 13 N.Y.3d 417 (2009)
When assessing the risk level of a sex offender, the phrase “directed at a stranger” applies even when the crime involves possessing child pornography of unknown children; however, a court retains discretion to depart from the presumptive risk level indicated by the guidelines if special circumstances warrant a different outcome.
Summary
The New York Court of Appeals addressed whether possessing child pornography of unknown children qualifies as a crime “directed at a stranger” under the Sex Offender Registration Act (SORA). Johnson, convicted of attempted promoting a sexual performance by a child, challenged his Level Two designation, arguing that possessing images of strangers shouldn’t automatically increase his risk level. The Court held that the crime was indeed directed at strangers, but emphasized that courts have the discretion to depart from the presumptive risk level based on individual case circumstances. This decision clarifies the application of SORA guidelines while preserving judicial flexibility in risk assessment.
Facts
Defendant Johnson possessed pornographic images of children who were strangers to him. He pleaded guilty to attempted promoting a sexual performance by a child and was sentenced to probation. Due to his conviction, he was required to register as a sex offender under SORA. The Board of Examiners of Sex Offenders (Board) recommended a Level Two designation, based in part on Risk Factor 7, which assigns points if the crime was “directed at a stranger.” County Court adopted the Board’s recommendation.
Procedural History
The County Court initially designated Johnson as a Level Two offender. The Appellate Division affirmed the County Court’s decision. The New York Court of Appeals granted leave to appeal to consider the interpretation of Risk Factor 7.
Issue(s)
Whether, for the purpose of sex offender risk assessment under SORA, the crime of possessing child pornography is “directed at a stranger” when the images depict children unknown to the possessor.
Holding
Yes, because the crime of possessing child pornography exploits the children depicted, making them victims of the possessor’s actions, even if there is no prior relationship. However, the court is not bound by the Board’s recommendation and may depart from the presumptive risk level if warranted by special circumstances.
Court’s Reasoning
The Court reasoned that the plain language of Factor 7 includes crimes “directed at a stranger.” While acknowledging that the typical understanding of stranger-directed sex crimes involves direct contact, the Court emphasized that child pornography statutes aim to protect children from exploitation. By consuming the pornographer’s product, the defendant contributes to this exploitation, making the children victims. The Court referenced Matter of North v Board of Examiners of Sex Offenders of State of N.Y., 8 NY3d 745, 748 [2007] and New York v Ferber, 458 US 747, 759 10 [1982] to support the victim status of children in child pornography cases.
However, the Court also clarified that the Board’s risk assessment is only “presumptive,” and that both the Board and the court have discretion to depart from it if special circumstances warrant. The Court stated, “the Board or court may depart from it if special circumstances warrant” (Guidelines at 4). It recognized that “an objective instrument, no matter how well designed, will not fully capture the nuances of every case” (id.). The Court cited Matter of VanDover v Czajka, 276 AD2d 945, 946 [3d Dept 2000] and Matter of New York State Bd. of Examiners of Sex Offenders v Ransom, 249 AD2d 891, 892 [4th Dept 1998] to reinforce that the Board serves only in an advisory capacity. In this specific case, the defendant did not argue for a downward departure, limiting the court’s review to the legal arguments presented.