DECISION AND ORDER Defendant moves for an order exempting him from designation as a sex offender and from mandatory registration under the Sex Offender Registration Act (SORA), on the ground that, as applied to his case, Correction Law section 168-a, is unconstitutional.1 For the reasons stated below, defendant’s motion is denied. Defendant’s Motion I. Procedural History The case was assigned to this court for a SORA hearing on November 1, 2023. On the court date, defense counsel requested an adjournment for motion practice related to the Court of Appeals’ forthcoming decision in People v. Brown, — NY3d — , 2023 NY Slip Op 05973 (November 21, 2023). Following several adjournments and the completion of motion practice, on December 18, 2023, I denied defendant’s motion on the record and conducted the SORA hearing. At the conclusion of the hearing, I found that defendant is a level three predicate sex offender, and I denied defendant’s application for a downward departure. On December 18, 2023, a short form order setting forth defendant’s sex offender level and designation was entered. The following constitutes the court’s opinion. II. Background Following a jury trial, defendant was convicted of three counts of Kidnapping in the First Degree (Penal Law §§135.25 [1], [2] [a] and [2] [b]) and Unlawful Imprisonment in the First Degree (Penal Law §135.10). On October 5, 2000, the sentencing court imposed an aggregate prison term of twenty-five years to life. The conviction relates to an incident that occurred over a two-day period in 1998, in which defendant and six codefendants abducted and physically abused a 14-year-old boy who attended school with one of the codefendants. Defendant set up a rigged game of Mahjong to trick the boy and, at the end of the game, told the boy that he owed over three thousand dollars. Defendant made the boy sign an “IOU” note and demanded that the money be paid in one month. Shortly after a month passed, the defendants went to the boy’s home and threatened him. They also made threats to the boy’s family. On October 13, 1998, the group kidnapped the boy and took him to an apartment. At the apartment, defendant and his codefendants beat the boy and one of the codefendants cut the boy’s neck with scissors. The following day, the defendants took the boy from the apartment to a payphone to place a call demanding money from the boy’s family. The police traced the call to defendant and ultimately arrested defendant and his accomplices. On September 2, 1997, less than one year before the offense at issue, defendant pleaded guilty to first-degree unlawful imprisonment, in satisfaction of an indictment that included charges of second-degree kidnapping and endangering the welfare of a child. In that incident, defendant and another person forced a 12-year-old boy to remove his clothing and took photos of the boy naked to blackmail the boy’s family. Defendant was sentenced to six months’ jail and five years’ probation. In connection with the 1997 conviction, defendant was adjudicated a level two sex offender.2 III. Discussion Pursuant to Correction Law section 168-a, the definition of “sex offender” includes any person convicted of kidnapping or unlawful imprisonment, “provided the victim of such kidnapping or related offense is less than seventeen years old and the offender is not the parent of the victim…” (Correction Law §§168-a [1], [2] [a] [i]). Recently, in People v. Brown, — NY3d — , 2023 NY Slip Op 05973 (2023) and previously, in People v. Knox, 12 NY3d 60 (2009), the Court of Appeals addressed the constitutionality of the Correction Law provisions related to cases of kidnapping and unlawful imprisonment where the offenses do not include a sexual act or motive. In People v. Knox and its companion cases, the factual circumstances underlying the defendants’ convictions vary. Defendant Judy Knox, who pleaded guilty to attempted kidnapping, tried to pull an eight-year-old girl away from a group of children in a park with the motive of replacing her own child, of whom she had lost custody. Defendant Eliezer Cintron, who was convicted of unlawful imprisonment, became angry at his girlfriend and locked her and her one-and two-year-old children in her apartment for several days. In the third case, defendant Francis Jackson, who pleaded guilty to attempted kidnapping, abducted the son of a woman he was trafficking in prostitution and threatened to kill the boy if the woman stopped working for him. The defendants argued that the “sex offender” label and registration requirements violated their state and federal constitutional rights because their crimes involved no actual, intended or threatened sexual misconduct. Defendant Judy Knox also asserted that the “sex offender” classification is unconstitutional on its face. The People acknowledged that there was no evidence of sexual misconduct but argued that the possibility of a sexual motive or threatened sexual misconduct could not be ruled out. The Knox Court, applying the rational basis test, explained that the governmental interest advanced by SORA is the protection of the community against people who have shown themselves capable of committing sex crimes. The Court’s opinion includes a discussion of studies regarding non-family abductions of children. The Court explained that, in choosing to attach the label “sex offender” to persons convicted of these types of crimes, the New York Legislature “could rationally have relied on the fact that a great many cases of kidnapping or unlawful imprisonment of children are indeed sex offenses” (Knox at 68). The Court opined that the Legislature “had a rational basis for concluding that, in the large majority of cases where people kidnap or unlawfully imprison other people’s children, the children either are sexually assaulted or in danger of sexual assault” (id. at 68-69). In addition, the Court rejected defendant Judy Knox’s argument that the “sex offender” classification is unconstitutional on its face. In short, the Court held that “the State did not violate [the] defendants’ constitutional rights by compelling them to register as ‘sex offenders,’ even though there was no proof that their crimes involved any sexual act or sexual motive” (id. at 64). In People v. Brown, Marcus Brown pleaded guilty to first-degree robbery and other charges, including first-degree unlawful imprisonment, in connection with the gunpoint robbery of his aunt in her home while her 10-year-old child was present. At the SORA proceeding, Brown argued that, as applied to his case, the requirement of “sex offender” designation and registration for a crime with no sexual conduct or motivation was unconstitutional. Brown asserted that his case was distinguishable from Knox and its companion cases. The prosecution conceded that Brown’s offense had no sexual component but argued that registration was mandatory under Knox. The SORA court determined that Brown’s sole motivation was to steal money and that the offense involved no sexual contact or motivation. In addition, the court found that Brown was not a sex offender and posed no risk of sexual threat at all. Notwithstanding those findings, the SORA court held that it was “constrained by state law” under Knox to mandate Brown’s registration as a sex offender. The SORA court granted Brown’s application for a downward departure stating that the Board ” ‘greatly overestimated’ ” defendant’s ” ‘risk of being a sexual offender.’ ” (Brown at *2.) At the Court of Appeals, Brown again raised a due process as-applied challenge, arguing that requiring him to register as a sex offender when he never engaged in sexual misconduct was not rationally related to the government’s interest in protecting the public from sex offenders. Brown asserted that his case was factually distinguishable from Knox and its companion cases because the victim, his cousin, was not the target of the crime and was only detained for a short time. In addition, he argued that any concern that dangerous sex offenders might escape registration, as expressed by the Knox Court, did not apply in his case where there was an uncontested judicial finding of no sexual risk. The prosecution argued that, under Knox, registration is automatic even in cases where the offense lacks a sexual component. The Brown decision discusses the facts of Knox and its companion cases and the studies relied upon in the Knox decision. The Brown Court explained that although not sexually motivated, the offenses in the Knox cases provided some basis to conclude that each of the defendants posed a future risk of sexual harm to children. The Court determined that defendant Brown’s circumstances were distinguishable from those of the defendants in Knox. The Court stated: “First, and most significantly, the SORA court…expressly found that defendant is not a ‘sex offender,’ that the ‘[t]he child involved was not even the target of the crime, was not physically or sexually abused, [and] not kidnapped or detained for any prolonged period of time,’ that ‘[t]here was no sexual contact or motivation on the defendant’s part at all,’ and that he ‘posed no risk of sexual threat at all.’ ” (Id. at *4.) The Brown opinion highlights specific circumstances that informed the determination that the Knox defendants posed a future risk of sexual harm to children. The Court noted that Judy Knox was homeless and suffered from substance abuse and extensive psychiatric issues. The Court opined that had Knox been successful in kidnapping the girl and removing her ” ‘from the safety of everyday surroundings,’ the child indeed could have been left vulnerable to sexual abuse or exploitation.” (Id. at *5.) The Court also noted that defendants Cintron and Jackson “ were both willing to leverage children and put them in harm’s way in order to exert control over their mothers” (id.). The Brown Court found that, unlike the Knox defendants, defendant Brown only sought to steal money from his aunt and that the child, who was not a target of the crime, just happened to be home. The Court determined that the safety concerns regarding the children in Knox were not present in the allegations against Brown. Specifically, Brown did not remove the child from his home, detain him for long or cut the child off from his everyday surroundings. The Court also found that specific facts of the companion cases — in Cintron, a previous sex offense involving a minor, and in Jackson, profiting from facilitating prostitution — demonstrated a risk of future harm to children. In contrast, in defendant Brown’s case, “there was no past sexual offense and an affirmative judicial finding that [Brown] posed no future risk” (id.). In reaching its holding, the Brown Court stated: “In sum, the core holding and reasoning in Knox does not control here where defendant’s criminal behavior and his lack of future risk of sexual harm to children distinguish him from the Knox defendants. The Knox Court’s conclusion that designating those three defendants as sex offenders and mandating their SORA registration was rationally related to the government’s interest in protecting children from sexual assault lacks force here, where defendant’s offense belies any such threat.” (Id. at *6.) In finding that Marcus Brown was a person “for whom the sex offender designation ‘is unmerited,’ ” the Brown Court emphasized the role of SORA courts in fulfilling their “ factfinding responsibilities” and “determining each defendant’s future risk of sexual offense…” (id.). To be sure, in holding that defendant Brown’s as-applied claim was meritorious, the Court stated: “[i]t is precisely because there is a factual finding of defendant’s lack of risk — a finding which we have no power to disturb — that defendant’s as-applied challenge must succeed” (id.). Relying on the Brown decision, defendant argues that he should not be designated a “sex offender” and subject to registration because there are no facts establishing that he committed a sex offense. Defendant asserts that there was no sexual motivation involved in the offense and that his sole purpose was to steal money. The People argue that defendant’s case is distinguishable from Brown and controlled by Knox, where the Court held that the “sex offender” designation is not a violation of due process. IV. Findings of Fact and Conclusion This court is tasked with determining defendant Jian Lin’s future risk of sexual offense. Applying the Court’s holdings and the rationales set forth in People v. Brown and People v. Knox, I find that defendant poses a future risk of sexual offense. Defendant’s as-applied challenge to the applicability of the SORA requirements to his case, therefore, fails. Defendant’s argument that his case mirrors the circumstances of People v. Brown is unpersuasive. The facts of defendant’s case are readily distinguishable from those in Brown. Here, the non-relative 14-year-old victim was the target of defendant’s crime. Although defendant asserts that his motivation was to steal money, the specific means by which defendant sought to achieve that goal involved harm to the child. Defendant orchestrated an extortion scheme with the 14-year-old boy front and center. The scheme began with trickery and threats and progressed to the boy being kidnapped, beaten and cut. In defendant’s own words, the boy was “imprisoned, terrorized and assaulted” (defendant’s mot, exhibit C). In sharp contrast to the circumstances in Brown, defendant’s child victim was kidnapped, transported to a location where he was cut off from the safety of his everyday surroundings and held captive for more than a day. In addition, defendant has a prior sex offense conviction for the imprisonment of a 12-year-old boy to whom defendant is not related. There, too, the allegations involve an extortion scheme centered on a child hostage. Significantly, in that prior case, defendant forced the young boy to be photographed naked. Defendant’s case is akin to the situations in Knox and its companion cases. Indeed, identical to the defendants in Cintron and Jackson, defendant leveraged a child in both of his cases. Moreover, defendant’s 14-year-old victim was subjected to physical assaults while he was held captive overnight and, undoubtedly, also vulnerable to sexual abuse or exploitation. In short, the circumstances of this case establish that defendant poses a future risk of sexual offense. Given that risk, there is a rational basis upon which to require defendant’s designation as a “sex offender” and his registration pursuant to the Sex Offender Registration Act. Defendant’s argument that, as applied to him, Correction Law section 168-a is unconstitutional, therefore, lacks merit. Accordingly, defendant’s motion for exemption from designation as a “sex offender” is denied. SORA Hearing In connection with the hearing, the court received in evidence the Board Case Summary and the Board Risk Assessment Instrument offered by the People (People v. Mingo, 12 NY3d 563, 573 [2009]). In addition, the court received the following from defendant: (1) Defendant’s Notice of Motion to Dismiss SORA Requirement and Memorandum of Law dated December 4, 2023; and (2) letter from defendant Jian Lin submitted December 18, 2023. The RAI sets forth the following scoring recommendations: 30 points under risk factor one related to being armed with a dangerous instrument because scissors were used; 20 points under factor five related to the victim’s age because the victim was 14; 30 points under factor nine related to prior crimes based upon defendant’s prior sex conviction; and 10 points under factor ten for recency of prior crime given that defendant’s prior sex offense conviction was less than three years before this offense. Regarding risk factor fourteen related to supervision after release, the Board recommended that points be assessed if there were evidence establishing that defendant would be deported. At the hearing, the People neither presented such evidence nor requested the assessment of any points under that factor. The People argued that, as recommended by the Board, defendant should be assessed a total of 90 points, which amounts to level two, and that an override for defendant’s prior felony sex crime conviction elevates level two to level three. Defendant did not contest the scoring proposed by the People or the presumptive override to level three. The People established, by clear and convincing evidence, that the assessment of points for each of the risk factors discussed above for a total of 90 points is warranted. Accordingly, defendant’s score is 90 points which corresponds to level two. In addition, the People established, by clear and convincing evidence, that defendant has a prior conviction for a felony sex crime which mandates an override to level three. Defendant sought a downward departure from level three to level two. In support of his request, defendant cited his behavior while in prison, stating that he has incurred only one “Tier 2 ticket” during twenty-five years of incarceration. Defendant argued that his age, educational achievements and feelings of remorse are not accounted for by the Board materials and lessen any risk he poses. Defendant also asserted that his being granted parole release and his reentry plan justify a downward departure. The People opposed a downward departure, stating that defendant’s accomplishments have been achieved under “strict supervision” while incarcerated. In addition, the People noted that defendant committed the instant offense within one year of his prior felony sex crime conviction. In determining whether to grant a departure from the presumptive risk level provided by an offender’s guidelines factors score, courts must follow three steps. First, a court must consider whether the alleged aggravating or mitigating circumstances are, “as a matter of law, of a kind or to a degree not adequately taken into account by the guidelines.” (People v. Gillotti, 23 NY3d 841, 861 [2014].) Second, the party seeking the departure must prove the existence of the alleged circumstances. Finally, “the court must exercise 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 recidivism.” (Id.) Defendant failed to establish, by a preponderance of the evidence, that a downward departure is warranted. The circumstances that defendant proffers as mitigation are adequately accounted for under the categories of the Board Risk Assessment Instrument. Alternatively, weighing any mitigating factors, I find that a downward departure is not warranted. Defendant, as part of a group of seven, kidnapped and physically assaulted a 14-year-old child. Less than a year before this offense, defendant imprisoned a 12-year-old boy and photographed the boy naked. Given the totality of the circumstances and, particularly, the abhorrent nature of the offense in issue, the presumptive risk level is an accurate assessment of dangerousness and risk of recidivism. Accordingly, defendant’s application for a downward departure is denied. For all of the foregoing reasons, defendant is adjudicated a level three sex offender and designated a predicate sex offender. This constitutes the decision and order of the court. Dated: February 13, 2024
