PEOPLE v. JOHNSON (2025)

Judgment, Supreme Court, New York County (Laura Ward, J.), rendered November 20, 2018, convicting defendant, upon his guilty plea, of rape in the second degree, burglary in the second degree as a sexually motivated felony, and bail jumping in the second degree, and sentencing him to concurrent prison terms of five years, five years, and one year, respectively, followed by ten years of postrelease supervision, and designated defendant as a sex offender based on his convictions of rape in the second degree and burglary in the second degree as a sexually motivated felony, unanimously modified, as a matter of discretion in the interest of justice, to the extent of vacating so much of the judgment as certified defendant as a sex offender with regard to burglary in the second degree (indictment No. 3045/15) and vacating the surcharges and other fees associated with that conviction that were imposed at sentencing, and otherwise affirmed.

As the People agree, the court should not have designated defendant a sex offender in connection with his conviction of second-degree burglary as a sexually motivated felony because this Court has squarely held that “burglary in the second degree as a sexually motivated felony is not a registrable offense under SORA” (People v. Burgos, 225 A.D.3d 430, 430, 204 N.Y.S.3d 509 [1st Dept. 2024], citing People v. Conyers, 212 A.D.3d 417, 418, 181 N.Y.S.3d 74 [1st Dept. 2023], lv denied 39 N.Y.3d 1110, 186 N.Y.S.3d 825, 208 N.E.3d 53 [2023];  People v. Simmons, 203 A.D.3d 106, 161 N.Y.S.3d 69 [1st Dept. 2022], lv denied 38 N.Y.3d 1035, 169 N.Y.S.3d 239, 189 N.E.3d 346 [2022]).

Based on our interest of justice powers, we vacate the surcharge and fees imposed on defendant at sentencing in connection with indictment No. 3045/15 (see People v. Chirinos, 190 A.D.3d 434, 435, 135 N.Y.S.3d 641 [1st Dept. 2021]).

We perceive no basis for reducing defendant's period of post-release supervision.