Possessing Child Pornography Conviction Appeal in New York

In People v. Johnson, 11 NY3d 416, 900 N.E.2d 930, 872 N.Y.S.2d 379 (2008), the Court rejected a challenge by a Defendant convicted of possessing child pornography who was assessed 20 points under the RAI because his criminal conduct was "directed at a stranger". The Court noted that the rationale for these additional points in child pornography cases was "not at all obvious" and "seemingly anomalous" but held that the plain meaning of RAI dictated that these additional points be assessed. 11 NY3d at 419, 421. The Court also noted that this point assessment did not seem to be "written with possessors of child pornography in mind". 11 NY3d at 420. The Court held that the remedy for cases in which a result dictated by the RAI "does not make sense" was not to distort the meaning of the instrument but to depart from it. 11 NY3d at 416. In discussing departures, the Court first recited the well-established departure standards of the Commentary including the direction that a departure from the RAI is warranted where "there exists an aggravating or mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines". 11 NY3d at 421. The Court then also emphasized, however, that judges were free to depart from Board recommendations and make their own independent decisions: The statute is quite clear: the Board's duty is to "make a recommendation to the sentencing court" (Correction Law 168-l 6 and the court applying a clear and convincing evidence standard, is to make its determination after considering that recommendation, and any other materials properly before it (Correction Law 168-n 3). While departures from the Board's recommendations are of course the exception, not the rule, the possibility of such departures has been generally recognized (see Matter of VanDover v. Czajka, 276 AD2d 945, 946, 714 N.Y.S.2d 793; Matter of New York State Bd. Of Examiners of Sex Offenders v. Ransom, 249 AD2d 891, 672 N.Y.S.2d 185 4th Dept 1998 "The Board serves only in an advisory capacity that is similar to the role served by a probation department in submitting a sentencing recommendation"; see also, 83 NY Jur. 2d Penal and Correctional Institutions 319 2d ed. Updated 2008 "the court is not bound by the recommendation of the board in determining the appropriate risk level of an offender . . . and, in the exercise of discretion, may depart from the board's recommendation"). (11 NY3d at 421.)