People v. Jose Perez
People v. Perez, decided 3/26/20, 35 N.Y.3d 85
Does the “essential elements” test from North (see below) used to determine whether a foreign offense requires sex offender registration in New York also apply to the scoring of the Risk Assessment Instrument, specifically the assessment of 30 points for a prior Endangering the Welfare of a Child conviction under Factor 9?
Yes it does.
In this case, defendant’s New Jersey conviction for Lewdness was equivalent to Endangering the Welfare of a Child for the purpose of Factor 9.
In Matter of North v. Board of Examiners, 8 N.Y.3d 745 (2007), the court held that a foreign (out-of-state or federal) conviction will qualify as a registrable offense in NY under Correct. L. 168-a(2)(d)(i) if it satisfies the “essential elements” test, which is a “more flexible approach” than the strict equivalency analysis used for predicate sentencing. The essential elements test involves a comparison of the elements of the foreign offense with the comparable NY offense to identify points of overlap. Where the offenses cover the same conduct, the offense is registrable in NY. Where the foreign offense also criminalizes conduct that is not covered under the NY offense, the board or court must review the underlying conduct to determine whether it would be covered under the NY statute.
Applying that test to Factor 9 in this case, the court determined that the registrant’s New Jersey conviction for “lewdness” was sufficiently similar to NY’s Endangering the Welfare of a Child, and therefore warranted the assessment of 30 points. In doing so the court looked to the underlying conduct of the NJ conviction, which involved lewd exposure to a child.
Judge Wilson dissented at length, joined by Judge Rivera, revealing additional details in the record and highlighting that the prosecution had not only failed to preserve the majority’s analysis as a basis for Factor 9 points below but had expressly disavowed it. Factor 9 permits the assessment of points only for a conviction or adjudication, but the prosecution repeatedly emphasized that it was not relying on the conviction but rather on the underlying conduct. Similarly, Wilson pointed out that the North analysis is unnecessary for Factor 9 because the court should merely look at the statute of conviction: if it has a sexual element, it qualifies as a prior sex offense warranting 30 points. If it does not, but there is evidence that the underlying conduct was sexual, an upward departure is appropriate. Wilson also argued that the majority should not have applied the North analysis to the RAI at all, since the legislature expressly chose not to. Finally, even if he had accepted the rest of the majority opinion, he also disagreed with their analysis under North, noting that Endangering is hardly the most equivalent NY statute to the NJ conviction.
Judge Fahey concurred, agreeing with Judge Wilson that the Endangering argument was unpreserved, but adopting the Appellate Division’s reasoning to affirm on the ground that the NJ conviction was equivalent to a misdemeanor sex offense, which also warrants 30 points under Factor 9.
The decision was written narrowly, so a theoretically open question is whether the SORA court should also use the North test to determine whether a foreign conviction warrants points under the other categories of Factor 9, including a violent felony, non-violent felony, or misdemeanor. Similarly, the question remains whether the court should apply the same analysis for the SORA override to Level 3 for a prior felony sex offense. The prosecution will probably argue that it should, but Wilson’s dissent highlights the problems with this approach.