- Court
- New York Supreme Court, Appellate Division, First Department
- Case
- People v. Johnson
- Date
- June 2, 2026
- Slip Op. No.
- 2026 NY Slip Op 03395
Background
Defendant Charles Johnson was convicted of rape in the second degree, which served as the basis for his sex offender registration adjudication under the Sex Offender Registration Act (SORA). On the same day he was convicted of the rape, Johnson was also convicted of burglary in the second degree as a sexually motivated felony, which is not itself a SORA-registerable offense. The Supreme Court, New York County, adjudicated Johnson a level two sexual offender, granting an upward departure from his presumptive risk level based on the concurrent burglary conviction as an aggravating factor not accounted for in the risk assessment instrument. The court also considered that Johnson had fled the jurisdiction after his arrest for the burglary offense and committed the rape while on bail for the burglary. Johnson appealed, arguing that the upward departure was unwarranted and that mitigating factors, including his participation in sex offender and substance abuse programs and a head injury, should have resulted in a lower classification.
Holding
The Appellate Division unanimously affirmed the level two adjudication. The Court held that the trial court providently exercised its discretion in granting the upward departure. Under People v. Gillotti, 23 NY3d 841 (2014), the SORA Guidelines provide for an upward departure when an offender has concurrent or subsequent offenses not accounted for under risk factor nine of the risk assessment instrument. The concurrent burglary conviction—a sexually motivated felony that is not itself SORA-registerable—properly constituted an aggravating factor, particularly because Johnson fled after his arrest for the burglary and committed the instant offense while on bail. The mitigating factors cited by Johnson, including participation in treatment programming, were already accounted for by the risk assessment instrument and did not warrant a departure. Johnson also failed to establish that his head injury prevented him from reoffending.
Takeaways
Concurrent convictions for offenses that are not themselves SORA-registerable can nonetheless serve as aggravating factors warranting an upward departure from the presumptive risk level. This is particularly true when the circumstances surrounding the concurrent offense—such as flight from jurisdiction and commission of a new crime while on bail—demonstrate heightened dangerousness. Mitigating factors that are already accounted for by the risk assessment instrument, such as participation in treatment programming, will generally not support a downward departure because the instrument has already given the offender credit for those factors.
Why It Matters
This decision is significant for SORA practice because it clarifies how courts should treat concurrent non-registerable offenses in the departure analysis. Defense attorneys seeking to argue against an upward departure based on concurrent offenses should be prepared to explain why those offenses do not demonstrate additional dangerousness beyond what the risk assessment instrument already captures. The decision also reinforces that medical conditions, including head injuries, will only support a departure if the offender can affirmatively demonstrate that the condition reduces recidivism risk, rather than simply asserting the condition’s existence.