author: Garcia, J.

text:
    [75 NE3d 651, 53 NYS3d 234]
    The People of the State of New York, Appellant, v William Cook, Respondent.
    Argued February 15, 2017;
    decided March 30, 2017

      POINTS OF COUNSEL

      Richard A. Brown, District Attorney, Kew Gardens (Edward D. Saslaw, Robert J. Masters, John M. Castellano, Ayelet Sela and Joseph N. Ferdenzi of counsel), for appellant.

      Lynn W.L. Fahey, Appellate Advocates, New York City CLisa Napoli of counsel), for respondent.
   OPINION OF THE COURT

Garcia, J.

In this case, we are asked to determine whether sentencing courts in two different counties may each render Sex Offender Registration Act (SORA) risk level determinations based upon a single set of “Current Offense [s]” forming the basis of a risk assessment instrument (RAI). We hold that, under these circumstances, only one determination is permitted and, accordingly, we affirm the order of the Appellate Division.

I.

Defendant committed multiple sexual offenses against four children — three boys under the age of 11, and a young girl suffering from cerebral palsy — in both Queens and Richmond Counties. Prosecution was coordinated between the two District Attorneys’ offices, and charges were brought and pleas negotiated in each county.

In Richmond County, defendant pleaded guilty to first-degree sodomy committed against one boy. Pursuant to a plea agreement, Richmond County Supreme Court sentenced defendant to a term of to 15 years’ imprisonment, to run concurrently with defendant’s Queens County sentence.

In Queens County, defendant pleaded guilty to second-degree rape of the 12-year-old girl, and to first-degree attempted sodomy and two counts of first-degree sexual abuse as to the three remaining victims. During the plea allocution, the People agreed not to pursue additional charges as to a fifth named victim whom defendant confessed he also sexually abused. Pursuant to a second plea agreement, Queens County Supreme Court sentenced defendant to 15 years’ imprisonment, to run concurrently with lesser terms and with defendant’s Richmond County sentence, followed by four years’ postrelease supervision.

In August 2012, in anticipation of defendant’s scheduled November 22, 2012 release, the Board of Examiners of Sex Offenders (the Board) prepared a case summary and RAI that evaluated defendant’s risk of reoffending and the harm that would be inflicted if he did reoffend. The Board’s risk assessment recommendation was based on a review of defendant’s file, including presentence and probation reports from both the Queens and Richmond County offenses. The Board assessed 125 points and classified defendant “at a Level III (High) risk for re-offending, with absolutely no basis for departure.” Pursuant to its obligation under SORA, the Board notified the sentencing courts and District Attorneys in both counties of its recommendation and forwarded defendant’s completed RAI and case summary (see Correction Law § 168-1 [6]).

In September 2012, the Richmond County sentencing court conducted a SORA risk assessment hearing. The record before that court contained information regarding the conduct underlying all of the offenses committed by defendant in both counties — including materials provided by the Queens District Attorney — even though defendant pleaded guilty only to abusing a single victim in Richmond County. Following the hearing, the Richmond County SORA court assessed defendant 125 points and adjudicated him a level three, sexually violent offender.

In late November 2012, shortly after the Richmond County adjudication, the Queens County sentencing court notified counsel and defendant that it would conduct an additional risk assessment hearing. Defendant moved to dismiss the proceeding, arguing that it was duplicative of the Richmond County risk level determination and that it was barred by res judicata. In response, the People contended that SORA requires each sentencing court to render an independent adjudication and that res judicata was not a bar to compliance with that obligation.

In April 2013, the Queens County sentencing court denied defendant’s motion to dismiss the Queens County SORA proceeding. The court ruled it was (1) required by statute (Correction Law § 168-d [1] [a]; [3]) to assess every offender convicted in that court, and (2) not bound by the Richmond County adjudication because that county’s SORA-qualifying offenses were different, and because the entire adjudication process was “case and fact specific.”

A Queens County SORA hearing was subsequently held, and defendant was assessed 105 points, making him a presumptive level two offender. Nonetheless, the court adjudicated defendant a level three, sexually violent offender after granting the People’s request for an upward departure based on numerous aggravating factors.

On appeal, defendant again argued that the Queens County adjudication was not authorized by statute and was barred by res judicata. The Appellate Division agreed and reversed the Queens County SORA court’s order denying defendant’s motion to dismiss the SORA risk assessment hearing (128 AD3d 928, 929 [2d Dept 2015]). The Court concluded that “[t]he only reasonable interpretation of the statute and Guidelines, and the one that most effectuates SORA’s purpose, is that only one SORA ‘disposition’ may be made per ‘Current Offense,’ or group of‘Current Offenses’ ” (id. at 931). The Appellate Division also held that the doctrine of res judicata barred the Queens County SORA proceedings (id. at 932).

This Court granted the People leave to appeal (26 NY3d 908 [2015]) and we now affirm.

II.

In enacting SORA, the legislature found that “the danger of recidivism posed by sex offenders, especially those sexually violent offenders who commit predatory acts characterized by repetitive and compulsive behavior” made “protection of the public from these offenders ... of paramount concern or interest to government” (L 1995, ch 192, § 1). To achieve these goals, SORA created a statewide “registration and notification system for individuals convicted of sex offenses based on a three-tier classification regime” administered by the New York State Division of Criminal Justice Services (People v Stevens, 91 NY2d 270, 275 [1998]). “The offender’s risk level determines the amount of information that can be disseminated about him to the public under the Act’s notification procedures” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 1 [2006] [hereinafter Guidelines]).

The sentencing court, based upon a review of the record and the Board’s recommendation, ultimately determines an offender’s appropriate notification level (see Correction Law § 168-n). We have made clear, however, that “a SORA risk-level determination is not part of a defendant’s sentence. Rather, it is a collateral consequence of a conviction for a sex offense designed not to punish,” but to further the statutory goal of protecting the public (People v Windham, 10 NY3d 801, 802 [2008] [citation omitted]).

Where, as here, a single RAI addressing all relevant conduct is prepared, the goal of assessing the risk posed by the offender is fulfilled by a single SORA adjudication. To hold otherwise— that is, to permit multiple risk level determinations based on conduct included in a single RAI — would result in redundant proceedings and constitute a waste of judicial resources. Here, for instance, once the Division of Criminal Justice Services was notified of the Richmond County SORA court’s determination, “it had the information it needed to serve SORA’s goal of ‘protect [ing] the public from’ this particular sex offender” (128 AD3d at 931, citing Stevens, 91 NY2d at 275). Any further proceedings then became duplicative.

The People argue that certain statutory language — namely, language directing what the sentencing court “shall” do with respect to determining predator status and level of notification — mandates that each individual sentencing court perform the specified actions (see Correction Law §§ 168-d [3]; 168-n [l]-[3]). However, contrary to the People’s claim, this language does not pertain to duplicate risk level determinations — based on conduct comprising the current offenses encompassed in a single RAI — rendered by multiple sentencing courts. The only reference to conduct spanning more than one county is found in the SORA Guidelines, which directs the Board to complete a single RAI that includes all relevant conduct:

“The Current Offense [s] section should be completed on the basis of all of the crimes that were part of the instant disposition. For example, if the offender pleaded guilty to two indictments in two different counties, both indictments should be considered in scoring the section” (Guidelines at 5-6, General Principles No. 8).

It follows that one — and only one — sentencing court should render a risk level determination based on all conduct contained in the RAI. This interpretation also prevents multiple sentencing courts from reaching conflicting conclusions based on the same RAI.

The People also expressed concern about what would happen if the convictions in the jurisdiction in which the SORA determination was rendered were ultimately reversed and vacated. In that event, the court in the other jurisdiction, having sentenced the defendant for another conviction included in the “current offenses” in the RAI, would be free to conduct a de novo hearing and render a determination based on the remaining SORA-qualifying offenses (see Correction Law § 168-1 [8]; see also People v Gallagher, 129 AD3d 1252 [3d Dept 2015]; People v Wilkes, 53 AD3d 1073 [4th Dept 2008]).

In light of our holding, it is imperative that prosecuting offices coordinate their submissions to the sentencing court that is adjudicating an offender’s risk level in order to ensure that all relevant information — from all relevant jurisdictions — is before that court (see Correction Law § 168-n [3]).

Given this holding, we need not address defendant’s res judicata arguments. Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge DiFiore and Judges Rivera, Abdus-Salaam, Stein, Fahey and Wilson concur.

Order affirmed.

      . See People v Cook, 29 NY3d 121 (2017) (decided herewith).

      . The basis for the court’s determination is described further in People v Cook (29 NY3d 121 [2017] [decided herewith]).


source: Caselaw Access Project

author: Stein, J. Garcia, J.

license: Public Domain

text:
    [75 NE3d 655, 53 NYS3d 238]
    The People of the State of New York, Respondent, v William Cook, Appellant.
    Argued February 15, 2017;
    decided March 30, 2017

      POINTS OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (Lisa Napoli of counsel), for appellant.

      Michael E. McMahon, District Attorney, Staten Island (Mor-rie I. Kleinhart of counsel), for respondent.
   OPINION OF THE COURT

Stein, J.

This appeal requires us to clarify the circumstances in which points can be assessed to a sex offender, for purposes of determining his or her risk level pursuant to the Sex Offender Registration Act, under risk factor 7, the category addressing the offender’s relationship with the victim. Specifically, we conclude that, in the circumstances of this case, the People failed to prove that defendant established or promoted his longstanding close relationships with the child victims for the primary purpose of victimization. Because points should not have been assessed under risk factor 7, we reverse.

I.

Defendant was charged, in both Queens and Richmond Counties, with committing numerous sex offenses against four children, who were between the ages of 5 and 12 at the time of the abuse. Three of the victims were siblings, and all four of the victims were children of defendant’s childhood friends. As part of a global resolution of the charges, defendant pleaded guilty to four sex offenses in satisfaction of two Queens County superior court informations, and one sex offense in satisfaction of a Richmond County indictment. In accordance with the plea agreements, the courts imposed all of the sentences to run concurrently, for an aggregate sentence of 15 years in prison, followed by four years of postrelease supervision.

When defendant’s release date was approaching, the Board of Examiners of Sex Offenders (the Board) prepared a case summary and risk assessment instrument (RAI), as required by the Sex Offender Registration Act (see Correction Law art 6-C [SORA]), addressing the charges and convictions in both counties. The Board recommended a score of 125 points, which presumptively falls within risk level three. As relevant here, the Board did not recommend any points under risk factor 7, which the RAI entitles “Relationship with victim.” A letter submitted to the court by the Richmond County District Attorney (DA) recommended the same allocation of points as recommended by the Board, similarly not including any points under risk factor 7 (see Correction Law § 168-n [3]). At a scheduling conference held a few days before the SORA hearing, Supreme Court, Richmond County clarified that defendant was contesting the Board’s assessment of points only under risk factor 6 (victim characteristics). The court also invited the parties to address risk factor 7, as well as a possible upward departure because defendant had requested a downward departure. The DA thereafter submitted a second letter, arguing that points should be assessed under risk factor 7 and, in the alternative, seeking an upward departure.

At the SORA hearing, defendant did not contest the 105 points recommended under risk factors 2 through 5. The court disagreed with the Board and the DA on risk factor 6, so it did not assess 20 points under that factor. However, the court did assess 20 points under risk factor 7, finding clear and convincing evidence that defendant had “groomed” his victims, and had changed his relationships with them to enable him to sexually abuse them. Thus, the court assessed defendant a total of 125 points, which rendered him a presumptive risk level three sex offender. The court stated that, in the event it was subsequently determined that points should not have been assessed under risk factor 7 (which would then render defendant a presumptive risk level two sex offender), there was a basis for an upward departure to risk level three, due to defendant having victimized a child with a disability, who was an especially vulnerable victim.

On defendant’s appeal, the Appellate Division affirmed, concluding that Supreme Court did not err in assessing points under risk factor 7 (128 AD3d 927 [2d Dept 2015]). After determining that defendant did not establish his entitlement to a downward departure, the Court had no occasion to consider the People’s request for an upward departure. This Court granted defendant leave to appeal (26 NY3d 908 [2015]).

II.

One of the legislature s principal goals in enacting SORA was “to protect the public from the danger of recidivism posed by sex offenders” (People v Stevens, 91 NY2d 270, 275 [1998] [internal quotation marks omitted]). To achieve this goal, SORA contains a detailed system of registration and community notification, with each sex offender’s registration and notification obligations emanating from his or her designated risk level within a three-tiered classification scheme (see Correction Law §§ 168-h, 168-i, 168-j; People v Mingo, 12 NY3d 563, 570-571 [2009]; Stevens, 91 NY2d at 275; see also Correction Law §§ 168-p, 168-q). Under SORA, the Board must recommend a risk level for each sex offender nearing release from incarceration (see Correction Law § 168-1 [6]), based on guidelines the Board created at the legislature’s direction (see Correction Law § 168-1 [5]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006] [Guidelines]).

When it drafted the Guidelines, the Board created the RAI, which is the tool used to assess points to sex offenders under various risk factors in an effort to determine their risk of re-offending and degree of danger to the community. The SORA court must hold a hearing, in which the People have the burden of proving, by clear and convincing evidence, the facts supporting the sought-after determinations (see Correction Law § 168-n [3]; Mingo, 12 NY3d at 571). The court is not bound by the Board’s recommendations but, rather, must make its own determinations based on the evidence (see People v Gillotti, 23 NY3d 841, 852 [2014]). The court is also required to set forth in writing its determinations, along with the facts and legal conclusions supporting those determinations (see Correction Law § 168-n [3]).

Only risk factor 7 is at issue here. The Guidelines provide that 20 points should be assessed under risk factor 7 if “[t]he offender’s crime (i) was directed at a stranger or a person with whom a relationship had been established or promoted for the primary purpose of victimization or (ii) arose in the context of a professional or avocational relationship between the offender and the victim and was an abuse of that relationship” (Guidelines, factor 7). Here, it is undisputed that the only relevant issue within this risk factor is whether defendant promoted his relationships with the victims for the primary-purpose of victimization.

This Court has noted that “ [i] t is plain from the face of factor 7 that it is meant to focus on the relationship, or absence of a relationship, between the offender and his [or her] victim before the crime was committed” (People v Johnson, 11 NY3d 416, 420 [2008]). The Commentary to the Guidelines explains — based on cited research and the Board’s expertise “in the field of the behavior and treatment of sex offenders” (Correction Law § 168-1 [1]) — that the circumstances allowing for the assessment of points under risk factor 7 raise “a heightened concern for public safety and need for community notification” (Guidelines at 12). The Commentary emphasizes that this “is not meant to minimize the seriousness of cases where the relationship is other than that of stranger or professional — e.g., familial. The need for community notification, however, is generally greater when the offender strikes at persons who do not know him well or who have sought out his professional care” (Guidelines at 12 n 8 [emphasis added]). The Guidelines further clarify the language of risk factor 7 at issue here, and provide the following examples:

“The phrase ‘established or promoted for the primary purpose of victimization’ is adopted from the Act itself (Correction Law § 168-a[9]). An uncle who offends against his niece generally would not fall into this category. A scout leader who chooses his profession or vocation to gain access to victims and ‘grooms’ his victims before sexually abusing them would qualify” (Guidelines at 12).

Based upon the foregoing, we must determine in this case where on the spectrum to place defendant’s relationship with his victims. In his relapse prevention plan — which he was required to complete as part of his sex offender counseling and treatment program — defendant wrote that “[a] 11 four victims are the children of my childhood and family friends who I grew up with since we were adolescents]. . . . [W]e all socialized together.'I spent most of my leisure time with these families and their children.” The mother of the three sibling victims confirmed that defendant was a longtime family friend of the victims. She informed the police that, in order to give the parents some respite, defendant had been bringing her children to his home and watching them on weekends for approximately eight years, much of which time elapsed before the abuse was alleged to have begun. One victim was defendant’s godson, who he had known since the child’s birth. The record further reflects that, three to six months prior to the instant offenses, defendant was forced to move from his residence and, at the recommendation of the fourth victim’s family, he rented an apartment in the same building as that victim’s grandmother and became a neighbor of that victim and his family. Defendant spent significant amounts of time at that family’s home, engaging in activities such as watching movies, playing games and eating together. Thus, as with the other victims, the record establishes defendant’s substantial nonsexual contact with the fourth victim before he began offending against that victim. Overall, defendant socialized with his four childhood friends — the parents of the victims — and their families on a daily or weekly basis for a lengthy period of time.

It is undisputed that defendant did not “establish [ ]” a relationship with these children in order to victimize them (Guidelines, factor 7). To the contrary, the record reflects that his relationships with them commenced during their infancy, due to his close and longtime friendships with their parents. The question is whether the People proved that defendant “promoted” a relationship with the children “for the primary purpose of victimization” (Guidelines, factor 7).

The word “promote” has several common definitions, including “to advance in station, rank, or honor,” and “to contribute to the growth or prosperity of” (Merriam-Webster Online Dictionary, promote [http://www.merriam-webster.com/dictionary/ promote]). However, we do not look at the word “promoted” in a vacuum; we must discern its meaning in the context of the Guidelines and the related Commentary. The Commentary references the greater need for community notification when the offender chooses victims “who do not know him [or her] well” (Guidelines at 12 n 8). The Commentary also provides contrasting examples: an uncle (who would not be assessed points under risk factor 7), and a scout leader who chooses that position to gain access to and grooms his victims before sexually abusing them (who would be assessed those points) (see Guidelines at 12).

In arguing that points should be assessed to defendant under risk factor 7, the People conflate the concepts of grooming a victim and promoting a relationship for purposes of victimization. It is clear that points were not intended to be assessed under that risk factor based on grooming, in and of itself; instead, the assessment of those points should be determined based on the nature of the relationship in which the grooming takes place. If risk factor 7 were interpreted to require the assessment of 20 points for every offender who groomed a victim — in addition to offenders who are strangers or professionals — then the vast majority of offenders against child victims would be assessed those points. Such a blanket assessment of points is inconsistent with the purpose of the Guidelines, namely, to require enhanced community notification where abuse occurs in more distant relationships, which indicate an increased risk of reoffending.

We are also unpersuaded by the People’s argument that the abuse of trust in a relationship is key to the assessment of points under risk factor 7. The Guidelines and Commentary refer to the abuse of trust only in the context of a professional relationship (see Guidelines, factor 7; Guidelines at 12). Neither the Guidelines nor the Commentary refer to the “abuse of such relationship” (Guidelines, factor 7; Guidelines at 12) with regard to the second category of offenders — i.e., those who established or promoted the relationship for the primary purpose of offending. If abuse of trust was a fundamental consideration under risk factor 7, the Guidelines would potentially require the assessment of points in almost all relationships, including familial relationships which are specifically excluded by the Commentary and by the plain language of the Guidelines (see Guidelines, factor 7; Guidelines at 12). However, we must apply the Guidelines logically, as they are written, and assess points under risk factor 7 only in situations where the need for notification is enhanced (see Johnson, 11 NY3d at 418; Guidelines at 12 n 8). Indeed, we have held that, to avoid anomalous results, courts should not distort the plain meaning of the risk factors, but must assess points as required under the Guidelines; then, if the resulting risk level does not accurately reflect the offender’s danger to the community, the court may exercise its discretion by granting an upward or downward departure to vary from the presumptive risk level indicated by the risk factors (see Johnson, 11 NY3d at 418).

It is noteworthy that the Board did not assess any points against defendant under risk factor 7, and the DA did not request the assessment of such points until prompted by the court to do so. This certainly indicates that the Board interpreted its own Guidelines to mean that points were not intended to be assessed under the circumstances of this case. Given the Board’s expertise in completing RAIs (see Correction Law § 168-1 [1]), and the fact that it drafted the Guidelines at the direction of the legislature (see Correction Law § 168-1 [5]), courts should give careful consideration to the Board’s interpretations of those Guidelines (see Guidelines at l).

The People bore the burden of establishing by clear and convincing evidence that defendant promoted his relationship with one or more of the victims for the primary purpose of sexually abusing them (see Correction Law § 168-n [3]; Mingo, 12 NY3d at 571). That burden was not met here. The record reflects that he had long-term, preexisting relationships with the children, continued those relationships in the role of a close family friend who regularly spent substantial amounts of time with the children and their families, and did not begin to offend against them until the eldest child was approximately 11 years old (see People v Montes, 134 AD3d 1083, 1083 [2d Dept 2015], lv denied 27 NY3d 904 [2016]; see also Guidelines at 12 n 8). Therefore, the evidence in this record does not support Supreme Court’s determination that defendant “promoted” his relationships with these children for purposes of victimization (see Arthur Karger, Powers of the New York Court of Appeals §§ 13:7, 13:9 at 470-473, 479-485 [3d ed rev 2005]), as opposed to redirecting his long-standing close and involved relationships with them in such a way as to allow for sexual abuse.

While we do not minimize the harm incurred by the interjection of sexual abuse into already-established close relationships, the eventual introduction of abuse into these relationships is not, alone, sufficient to assess points under risk factor 7 against an offender, such as defendant, who knew his victims well (see Montes, 134 AD3d at 1083; Guidelines at 12 n 8). If the legislature had intended for everyone who sexually offended against children to be designated risk level three, it could have imposed a mandatory override under such circumstances; it did not do so. On this record, we conclude that the lower courts erred in assessing 20 points under risk factor 7. Subtracting those points results in the assessment of a total of 105 points, rendering defendant a presumptive risk level two sex offender.

We reject the People’s invitation to review Supreme Court’s alternate finding that an upward departure to risk level three would be appropriate. Because the Appellate Division held that defendant was presumptively a level three sex offender, it did not consider that alternate ground (128 AD3d at 928). Accordingly, the Appellate Division order should be reversed and the case remitted to the Appellate Division for consideration of issues raised, but not determined, on the appeal to that Court.

Garcia, J.

(dissenting). Defendant pleaded guilty to, among other things, first-degree sodomy, second-degree rape, and first-degree sexual abuse, for sexually abusing four children: three boys under the age of 11 and a 12-year-old girl suffering from cerebral palsy. The Board of Examiners of Sex Offenders (the Board) and three lower courts all designated defendant a level three sex offender, posing a “high risk” of danger to the community. The majority now reverses this determination and presumptively classifies defendant as a level two, “moderate risk” offender. I dissent.

The Sex Offender Registration Act (SORA) was created “to protect the public from sex offenders” (People v Mingo, 12 NY3d 563, 574 [2009]). To that end, pursuant to SORA, a sex offender nearing release from incarceration receives a numerical risk level — ranging from level one (low risk) to level three (high risk) — based on a variety of risk factors set forth in the Sex Offender Guidelines (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006] [Guidelines]) created at the direction of the legislature (see Correction Law § 168-1). The sole issue in the instant appeal concerns whether the record contains clear and convincing evidence that risk factor 7 (“Relationship Between Offender and Victim”) applies.

I agree with the majority that “we must apply the Guidelines logically” and “as they are written” (majority op at 128-129). Accordingly, I cannot agree with the majority’s conclusion— contrary to the plain language of factor 7 — that defendant did not promote his relationship with any of his victims simply because those relationships were “preexisting” (majority op at 129).

I.

Risk factor 7 is designed to consider the “Relationship [b]e-tween [o]ffender and [v]ictim” (Guidelines, factor 7; see also People v Johnson, 11 NY3d 416, 420 [2008]). Specifically, factor 7 provides that an offender is assessed 20 points if “[t]he offender’s crime (i) was directed at a stranger or a person with whom a relationship had been established or promoted for the primary purpose of victimization or (ii) arose in the context of a professional or avocational relationship between the offender and the victim and was an abuse of that relationship” (Guidelines, factor 7).

By its plain language, risk factor 7 covers a broad range of conduct. It covers, for instance, conduct that is “directed at a stranger,” as well as offenders who “established” a relationship for the “primary purpose of victimization” (id.). But factor 7 is not limited to these types of new or unfamiliar relationships; it also encompasses certain established, or preexisting, relationships. For instance, under subdivision (ii), factor 7 covers conduct involving abuse of “a professional or avocational relationship” between offender and victim (id.).

Even more broadly, under subdivision (i) — the provision at issue here — points are assessed under factor 7 not only where the offender “established” a new relationship with a victim, but also where the offender “promoted” an existing relationship for the “primary purpose of victimization” (id.). As the majority notes, the word “promote” has a well-known, commonly-understood meaning (majority op at 127). Necessarily, the factor’s use of the term “promoted” presumes a preexisting relationship; an offender cannot “promote [ ]” a relationship that does not exist (Guidelines, factor 7). To conclude otherwise would read “promoted” out of risk factor 7 altogether.

Yet the majority concludes that — by virtue of his “preexisting relationships” with the victims — defendant’s conduct is automatically excluded from risk factor 7 (majority op at 129). Not only does this conclusion contravene the plain language of the risk factor, but it undermines the precise goal of the Guidelines: to identify offenders that present a unique threat to public safety, whether based on “(i) the offender’s likelihood of reoffense,” or “(ii) the harm that would be inflicted if he did reoffend” (Guidelines at 2). As the Guidelines recognize, certain categories of sex offenses — by their very nature — present a high level of risk based on the “offender’s danger to the community” (Guidelines at 1). Because “the need for notification is enhanced” (majority op at 129), these high-risk offenses will generally trigger certain risk factors and, by design, will yield a higher total score. For instance, an offender convicted of first-degree rape “[b]y forcible compulsion” (Penal Law § 130.35 [1]) will — by and large — trigger a provision of risk factor 1 (“Use of Violence”), resulting in an assessment of at least 10 points (see Guidelines, factor 1).

Child sex offenses similarly present a uniquely grave threat to public safety, warranting special attention under the Guidelines. This category of sex crimes poses a risk of extraordinary harm stemming from reoffense — an element that is given particular emphasis under the Guidelines: “It is important to note that the risk level seeks to capture not only an offender’s risk of reoffense but also the harm posed by a particular offender should he reoffend” (Guidelines at 2). The Guidelines therefore single out “the child molester” as a high-risk offender in light of the substantial “harm that would be inflicted” if a child molester were “to reoffend” (id.). Given their high-risk nature, cases involving child sexual abuse will generally trigger a number of risk factors, including, as relevant here, the “Relationship Between Offender and Victim” factor (Guidelines, factor 7). Accordingly, it is by design that “the vast majority of offenders against child victims” may be “assessed . . . points” under risk factor 7 (majority op at 128).

II.

The record is replete with clear and convincing evidence that defendant “promoted” his relationships with the child victims for the primary purpose of abusing them. Particularly when “look[ing] to the most serious wrongdoing” — as the Guidelines instruct (Guidelines at 6) — defendant’s conduct falls squarely within the plain language of risk factor 7.

As to one victim, the little girl, defendant’s confession specifies the precise moment that he began promoting the relationship for the primary purpose of victimizing her: “I then[,] while driving!,] told [the victim] that I had to tell her something that she should know. I told her that I fell in love with her.” Defendant continues:

“As time went on we slowly became closer and better friends, we would play around and tap kiss each other. She would ask me to get this for her and do that for her and bring this or that to her, and I would jump to do it for her . . . Somewhere down the line kissing became more serious.”

Defendant further describes how he planned a trip with her to Florida shortly after telling the young girl he was “in love” with her.

As to the fourth victim, a young boy who was not related to the other three victims, defendant describes in the “My Instant Offense[s]” section of his “Relapse Prevention Plan” how he promoted his relationship with this victim: “I selected the ten year old male victim as he became good friends with my [godson]. Access was made easier to this boy because he would enjoy visiting [my godson].” In another section, defendant continues: “My ten year old victim was beginning to be allowed to go places with people other than his parents. I made myself available to him as he was eager to get out, especially to spend time with his best friend, my [godson].”

In lieu of examining defendant’s relationship with each victim, as required by the risk factor, the majority — focusing on defendant’s relationship with the victims’ parents — imposes a blanket ban on “preexisting” relationships (majority op at 129). For instance, with regard to the fourth victim, there is no indication that defendant had much contact with the victim whatsoever before he began promoting the relationship for the primary purpose of facilitating the abuse. Nonetheless, the majority somehow concludes that defendant did not “promote [ ]” his relationship with this victim for the primary purpose of victimization, noting that defendant had a close and longstanding relationship with the victim’s parents (majority op at 127, 129-130).

Pursuant to its plain language, risk factor 7 is properly evaluated based on an individualized assessment of an offender’s conduct vis-a-vis his victim(s). On this record, there is clear and convincing evidence that defendant “promoted” his relationships with these victims “for the primary purpose of victimizing]” them (Guidelines, factor 7).

III.

Given SORA’s compelling purpose — “to protect the public from sex offenders” — “an accurate determination of the risk a sex offender poses to the public is the paramount concern” {Mingo, 12 NY3d at 574). By needlessly limiting the plain language of risk factor 7, the majority inhibits SORA courts statewide from using the Guidelines in a manner that “fully capture [s] the nuances of every case” so that “the instrument will result in the proper classification” (Guidelines at 4).

Constrained from invoking the risk factors, SORA courts— tasked with reaching an assessment that accurately reflects the threat posed by a sex offender — are compelled, with increasing frequency, to resort to “[t]he departure concept,” an already “common aspect of SORA litigation” (see People v Wyatt, 89 AD3d 112, 119 [2d Dept 2011]). The departure concept not only distorts the scheme established by the Guidelines — which advise that departures should be “the exception” and “not the rule” (Guidelines at 4) — but also constrains appellate review of an offender’s risk level determination (see People v Knox, 12 NY3d 60, 70 [2009] [reviewing departure under “abuse of discretion” standard]).

In this case, the Board classified defendant “at a Level III (High) risk” for reoffending. Both the Richmond County and Queens County sentencing courts agreed and adjudicated defendant a level three, sexually violent offender (see People v Cook, 129 NY3d 114 [2017] [decided herewith]). In reaching its determination, the Richmond County SORA court found clear and convincing evidence to support factor 7 points, concluding that “defendant brought that relationship to another level in order to accomplish his goals with each of these children.” The Appellate Division affirmed the level three determination (128 AD3d at 927-928). By reversing this holding and subtracting those points, the majority presumptively classifies defendant as a “moderate risk” offender and prevents the lower courts from imposing a level three assessment unless an upward departure is imposed.

IV.

Contrary to the majority’s claim, “the interjection of sexual abuse into already-established close relationships” — by “redirecting” a “close and involved relationship! ]” so as to “allow for sexual abuse” — certainly may fall squarely within the plain meaning of risk factor 7 (majority op at 130). In rejecting a commonsense approach, and ignoring defendant’s conduct towards each victim, the majority reduces defendant to a presumptive level two offender, apparently believing this score to be “an accurate determination of the risk” that defendant — a convicted child sex offender — poses to the public (Mingo, 12 NY3d at 574).

Given the plain language of risk factor 7, child molesters may certainly be more likely to receive factor 7 points {see I., supra). That, of course, is the point.

Chief Judge DiFiore and Judges Rivera, Abdus-Salaam and Wilson concur; Judge Garcia dissents and votes to affirm in an opinion in which Judge Fahey concurs.

Order reversed and case remitted to the Appellate Division, Second Department, for consideration of issues raised but not determined on appeal to that court.

      . The court also designated defendant a sexually violent offender (see Correction Law §§ 168-a [3]; 168-d [3]), which designation is not contested.

      . Supreme Court, Queens County subsequently held a SORA hearing addressing the same charges and convictions, after which it also determined that defendant was a risk level three sex offender, but on a different basis than the determination at issue on this appeal. The Appellate Division reversed the order of that court, and dismissed the Queens County proceeding, concluding that only one SORA hearing should be held for each group of “[c]urrent [o]ffense[s]” (128 AD3d 928, 931 [2d Dept 2015]). This Court granted the People leave to appeal in that case (26 NY3d 908 [2015]), which we are deciding in a separate opinion (see People v Cook, 29 NY3d 114 [2017] [decided herewith]).

      . It warrants mention that the instructions for defendant to complete his relapse prevention plan, which was a requirement of his prison-run sex offender counseling and treatment program, directed him to describe “how [he] groomed the victim(s) of [his] offending behavior.” Those instructions specifically required descriptions of how he physically and psychologically groomed them, and how he groomed the social environment. To be sure, a defendant’s relapse prevention plan generally may be relied upon in a SORA proceeding. However, courts should not blindly accept every word or phrase contained therein, but should consider the context and the circumstances under which the document was created. We note the inherent unfairness here, for instance, where the State insisted that defendant embellish his relapse prevention plan with particular details of his offenses — including the implication that he must utilize the word “grooming” and characterize his actions as such — and then used those particular characterizations against him.

      . Notably, at least one other risk factor is designed to explicitly take into account the particular risk of harm to child victims of sexual abuse (see Guidelines, factor 5).

      . We do not suggest that the SORA court must defer to every assessment of points by the Board in reaching its ultimate risk level recommendation. The Board’s overall risk level determination is generally reached by adding the number of points assessed under each risk factor (except for situations in which an override applies or the court grants a departure). Here, for example, the Board did not assess points under risk factor 7; however, it recommended that defendant be designated a risk level three sex offender based, in part, on its assessment of points under risk factor 6. After subtracting those points — which the SORA court found were not appropriate, and which are not at issue here — the total number of points assessed by the Board would have rendered defendant a risk level two sex offender. Unlike the dissent (see dissenting op at 135 n 3), we discern nothing inappropriate or inconsistent about adhering to the Board’s interpretation of its own Guidelines, while disagreeing with the Board’s assessment of points in any particular case or under any particular risk factor.

      . Contrary to the dissent’s characterization of our holding, we do not read risk factor 7 to “impose [ ] a blanket ban on [its application to] ‘preexisting’ relationships” (dissenting op at 134). Rather, our interpretation of that risk factor, and our determination that it does not apply here, are based on the nature and extent of defendant’s relationships prior to the abuse, and on the People’s failure to prove by clear and convincing evidence that such points should be assessed.

      . Our reference to “the lower courts” includes Supreme Court, Richmond County and the Appellate Division, which are the two courts that rendered determinations in this proceeding. We do not rely on the SORA determination rendered by Supreme Court, Queens County in a separate proceeding, in accordance with our decision in that proceeding that the latter court should not have held a SORA hearing (see People v Cook, 29 NY3d 114 [2017] [decided herewith]). We note, however, that while the dissent approvingly refers to the Queens County SORA court’s adjudication of defendant as a risk level three sex offender (see dissenting op at 131, 135), the dissent fails to mention that such court did not assess any points under risk factor 7, found that defendant was presumptively a risk level two sex offender, and adjudicated him a risk level three sex offender only by granting an upward departure.

      . The majority points to the “inherent unfairness” of the People’s reliance on defendant’s relapse prevention plan, as it “was a requirement of his prison-run sex offender counseling and treatment program” (majority op at 128 n 3). But defendant was not required to complete any section of the plan that did not apply to him. Nor is there any suggestion that the details provided by defendant were inaccurate or “embellishfed]” (majority op at 128 n 3). In any event, we need not rely solely on the statements in defendant’s relapse prevention plan, as defendant’s written confession following his arrest — described above — provides ample record support to affirm.

      . The majority also remarks that “points were not intended to be assessed” under subdivision (i) of factor 7 “based on grooming, in and of itself” (majority op at 128). I agree. Rather, points are intended to be assessed where an offender “established or promoted” a relationship “for the primary purpose of victimization” (Guidelines, factor 7). Sometimes grooming conduct may qualify as “promoting]”; other times it may not. However, in fairness to lower courts, this Court too has used the term “grooming” as shorthand under this subdivision: “[Tjhere was no clear and convincing evidence that [the offender] purposefully ‘groomed’ the victims for the primary purpose of victimizing them, or, aside from grooming, had any relationship with the girls that would count for factor 7” (People v Izzo, 26 NY3d 999, 1003 [2015]).

      . The majority purports to give deference to the Board, at least with respect to its determination that points were not warranted under risk factor 7 (majority op at 129), but declines to give similar deference to the Board’s ultimate assessment of defendant as “a Level III (High) risk for re-offending.” In any event, we have repeatedly stated that the SORA court — -not the Board — is charged with the sole responsibility of adjudicating a defendant’s risk level “by either accepting the Board’s recommendation or rejecting that recommendation in favor of a different risk level classification supported by the evidence presented at the hearing” (People v Gillotti, 23 NY3d 841, 852 [2014], citing Correction Law § 168-n [2], [3]).


author: Rivera, J.

text:
    [75 NE3d 1159, 53 NYS3d 598]
    Kyle Connaughton, Appellant, v Chipotle Mexican Grill, Inc., et al., Respondents.
    Argued March. 21, 2017;
    decided May 2, 2017

      POINTS OF COUNSEL

      Kaiser Saurborn & Mair, P.C., New York City (Daniel J. Kaiser and Henry L. Saurborn, Jr., of counsel), for appellant.

      Messner Reeves LLP, New York City (Jean-Claude Mazzola and Ruofei Xiang of counsel), for respondents.
   OPINION OF THE COURT

Rivera, J.

Plaintiff Kyle Connaughton appeals, as limited by his brief, from an Appellate Division order affirming the dismissal of bis complaint under CPLR 3211 (a) (7) for failure to state a cause of action for fraudulent inducement against defendants Chipo-tle Mexican Grill and its Chief Executive Officer, Steven Ells. We affirm because plaintiff failed to adequately plead compensable damages.

I.

Plaintiff is a well-known chef who, prior to his employment with Chipotle, was developing a concept for a ramen restaurant chain. Plaintiff prepared a business plan and actively pursued potential buyers until Ells showed interest in the concept. Plaintiff then turned his efforts to developing ideas specifically for Chipotle’s restaurant platform. Thereafter, Ells offered to purchase the concept, and plaintiff, with the assistance of legal counsel, negotiated an agreement whereby he would work on the restaurant design for Chipotle with the title of Culinary Director based out of New York City.

The agreement expressly states that plaintiff’s employment was at-will, and that both plaintiff and Chipotle had the right to terminate the contract at any time without notice or cause. The agreement details plaintiff’s compensation. Chipotle agreed to pay plaintiff an annual salary of $150,000, and monthly car and housing allowances totaling $2,700. Plaintiff was also eligible for a merit bonus, increased salary, and a defined number of shares in Chipotle stock, which vested based on years of uninterrupted employment. Some stocks were scheduled to vest after two years, and another set would vest after plaintiff reached his three-year anniversary with Chipotle.

Plaintiff diligently worked to develop the ramen restaurant concept with Chipotle, and traveled widely to perfect his ideas and to purchase equipment and proprietary systems. In preparation for the launch of the flagship restaurant, Chipotle promoted the hiring of plaintiff as its new high-level chef. Plaintiff appeared in various widely-circulated and noted publications, spoke to journalists, and attended Chipotle-sponsored events to help market Chipotle restaurant brands.

All seemed to be going well and, in accordance with the agreement, plaintiff received his annual salary, monthly allowances, a first year-end bonus, and first set of vested stock. It appeared that defendants were on schedule to launch the restaurant in New York City by the end of plaintiff’s third year of employment. However, things took a very different turn.

While plaintiff was working on staffing for the new restaurant, he learned from Chipotle’s Chief Marketing Officer (CMO) that Ells had a non-disclosure agreement (NDA) with another well-known chef, who previously worked with defendants on a ramen restaurant concept, similar in both purpose and design to the one defendants contracted plaintiff to develop. The prior project fell apart when that chef and defendants failed to agree on financial terms. Defendants remained subject to the NDA with the other chef. Chipotle’s CMO confided in plaintiff that the chef would sue under the NDA if Chipotle opened the ra-men restaurant. Plaintiff further alleged that defendants converted, without authorization, the other chefs design for what became the Washington, D.C. flagship restaurant for one of Chipotle’s other brands.

When plaintiff confronted Ells about the NDA, Ells told him to continue with the work on the ramen restaurant, but plaintiff refused. Soon thereafter, Ells fired plaintiff.

As relevant to this appeal, plaintiff sued defendants for fraudulent inducement. Plaintiff claimed that by virtue of his reasonable reliance on Ells’ omissions about the business arrangement with the other chef, defendants fraudulently induced him to work for Chipotle and to share his restaurant concept to his detriment. He alleged that he would not have entered into the agreement with defendants had he known about the prior business arrangement. He further asserted that the ideas the Chipotle staff contributed to plaintiff’s design for the restaurant concept actually belonged to the other chef, and that using those ideas to launch plaintiff’s project would subject plaintiff to legal action. Plaintiff claimed he was “damaged in an amount to be determined at trial, including, but not limited to, the value of his Chipotle equity and lost business opportunities in connection with his ramen concept.” He further requested compensatory and punitive damages in amounts to be determined at trial, as well as attorneys fees and disbursements.

Defendants moved to dismiss the complaint under CPLR 3211 (a) (1) based on the documentary evidence that established plaintiff’s at-will employment status, and under 3211 (a) (7) for failure to state a cause of action. Defendants argued, in part, that a cause of action for fraudulent inducement may be maintained only where a party has suffered out-of-pocket pecuniary loss, not, as in plaintiff’s case, where damages are speculative or consist of lost business opportunities.

Supreme Court granted the motion and the Appellate Division affirmed with two Justices dissenting (135 AD3d 535 [1st Dept 2016]). The majority held that plaintiff’s damages were speculative and the facts alleged did not support an inference of calculable damages. The dissent concluded that because the pleading must be construed liberally and damages need not be proved during the pleading stage, the case should proceed to discovery to allow plaintiff to accumulate evidence of a pecuniary loss. The dissent also maintained that, if successful, plaintiff would be entitled to nominal damages (135 AD3d at 546-547 [Saxe, J., dissenting]).

Plaintiff appealed to this Court as of right under CPLR 5601 (a), based on the two-Justice dissent on a question of law. We now affirm.

II.

On a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7), “[w]e accept the facts as alleged in the complaint as true, accord plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). “At the same time, however, allegations consisting of bare legal conclusions . . . are not entitled to any such consideration” (Simkin v Blank, 19 NY3d 46, 52 [2012] [internal quotation marks omitted]). Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery (see e.g. Basis Yield Alpha Fund [Master] v Goldman Sachs Group, Inc., 115 AD3d 128, 134 [1st Dept 2014]; see also John R. Higgitt, Practice Commentaries, McKinney’s Cons Laws of NY, CPLR C3211:22 [“(T)he (CPLR 3211 [a] [7]) motion is useful in disposing of actions ... in which the plaintiff has identified a cognizable cause of action but failed to assert a material allegation necessary to support the cause of action”]).

To allege a cause of action based on fraud, plaintiff must assert “a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury” (Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996] [citations omitted]). Critically,

“[a] false representation does not, without more, give rise to a right of action, either at law or in equity, in favor of the person to whom it is addressed. To give rise, under any circumstances, to a cause of action, either in law or equity, reliance on the false representation must result in injury. . . .
“If the fraud causes no loss, then the plaintiff has suffered no damages” (Sager v Friedman, 270 NY 472, 479-481 [1936]).

In New York, as in multiple other states, “ ‘[t]he true measure of damage is indemnity for the actual pecuniary loss sustained as the direct result of the wrong’ or what is known as the ‘out-of-pocket’ rule” (Lama Holding, 88 NY2d at 421, quoting Reno v Bull, 226 NY 546, 553 [1919]). Under that rule, “[d]amages are to be calculated to compensate plaintiffs for what they lost because of the fraud, not to compensate them for what they might have gained .... [T]here can be no recovery of profits which would have been realized in the absence of fraud” (id. at 421, citing Foster v Di Paolo, 236 NY 132 [1923], AFA Protective Sys. v American Tel. & Tel. Co., 57 NY2d 912 [1982], and Cayuga Harvester v Allis-Chalmers Corp., 95 AD2d 5 [4th Dept 1983]). Moreover, this Court has “consistently] refus[ed] to allow damages for fraud based on the loss of a contractual bargain, the extent, and, indeed, . . . the very existence of which is completely undeterminable and speculative” (Dress Shirt Sales v Hotel Martinique Assoc., 12 NY2d 339, 344 [1963]).

Here, plaintiffs pleading is fatally deficient because he did not assert compensable damages resulting from defendants’ alleged fraud. The complaint alleges that in reliance on defendants’ fraudulent omissions, plaintiff stopped soliciting potential buyers. However, the complaint fails to allege that, in doing so, he rejected another prospective buyer’s offer to purchase the concept. Instead, plaintiff avers that once Ells showed an interest in his ramen restaurant idea, plaintiff turned to selling the concept to Chipotle. These are factual assertions of the quintessential lost opportunity, which is not a recoverable out-of-pocket loss (see Lama Holding, 88 NY2d at 422). As this Court has repeatedly stated, such damage is “disallowed as too speculative a recovery” (Dress Shirt Sales, 12 NY2d at 343; see also Lama Holding, 88 NY2d at 422).

Similarly inadequate to satisfy his pleading burden are plaintiff’s allegations that he might incur litigation expenses and potential loss of reputation if named in a civil action by the other chef. These are not claims of actual out-of-pocket loss but speculative claims of possible future damages, and fare no better than his lost profits claim. There are also no facts alleged in the complaint to support allegations of reputational harm. For example, plaintiff did not assert or provide facts from which it could be inferred that he lost standing within the restaurant industry, or that he is unemployable as a result of his association with Chipotle.

Nor is plaintiff entitled to nominal damages under this Court’s holding in Kronos, Inc. v AVX Corp. (81 NY2d 90, 95 [1993]). In that case, the Court explained that while nominal damages are typically available in a contracts case to vindicate a party’s contractual rights, nominal damages are only available in tort actions to “protect an important technical right” (id. [internal quotation marks omitted], quoting Note, Damages Recoverable in an Action for Inducing Breach of Contract, 30 Colum L Rev 232, 238 [1930]). Nominal damages are not available when actual harm is an element of the tort (Restatement [Second] of Torts § 907; accord Lee S. Kreindler et al., New York Law of Torts §§ 1:74, 21:2 [West’s NY Prac Series Aug. 2016 Update]). Conversely, nominal damages may be available in an intentional tort case where the plaintiff need not allege harm to maintain an action against defendant (see Kronos, 81 NY2d at 95 [explaining that nominal damages are available for trespass, which does not require a showing of harm]). Since actual harm is an element of fraudulent inducement (see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]), and there is no compelling reason to carve out an exception for such cause of action, as a general matter or specifically in this case, plaintiff is not entitled to nominal damages.

Contrary to plaintiff’s argument, under the circumstances of this case, discovery is not warranted because the defect in the pleading is with plaintiff’s inability to recover for the alleged injury. “[T]he mere hope that discovery might provide some factual support for a cause of action is insufficient to avoid dismissal of a patently defective cause of action” (Mandarin Trading Ltd. v Wildenstein, 65 AD3d 448, 451 [1st Dept 2009] [citation omitted]). To the extent plaintiff claims that discovery will provide proof that defendants’ fraud caused him to forgo offers from other potential purchasers of his ramen restaurant concept, no amount of discovery will transform these “undeter-minable and speculative” lost opportunities from noncompensable damages to out-of-pocket losses (see Lama Holding, 88 NY2d at 421-422).

III.

Here, accept[ing] the facts as alleged in the complaint as true, [and] accord [ing] plaintiff [ ] the benefit of every possible favorable inference,” plaintiff failed to plead a cause of action for fraudulent inducement (see Leon, 84 NY2d at 87-88). Plaintiff did not allege any out-of-pocket loss, and he did not otherwise plead a recoverable harm. We may not read into his allegations a claim for cognizable damages, which he did not actually incur, under the guise of liberally construing the complaint. Therefore, the order of the Appellate Division, insofar as appealed from, should be affirmed, with costs.

Chief Judge DiFiore and Judges Stein, Fahey and Wilson concur; Judge Garcia taking no part.

Order, insofar as appealed from, affirmed, with costs.

      . Plaintiff also alleged a cause of action for unjust enrichment against Chipotle for its failure to compensate him for his restaurant concept. Plaintiff does not challenge the dismissal of this cause of action on appeal to our Court.

      . Based on our conclusion that the cause of action was properly dismissed because plaintiff failed to plead compensable damages, we have no reason to address defendants’ alternative argument that plaintiff’s at-will status bars his action for fraudulent inducement against his former employer.


author: Stein, J.

text:
    [75 NE3d 1151, 53 NYS3d 590]
    The People of the State of New York, Respondent, v Everett B. McMillan, Appellant.
    Argued March 29, 2017;
    decided May 2, 2017

      POINTS OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (A. Alexander Donn of counsel), and Everett B. McMillan, pro se, for appellant.

      Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano and Robert J. Masters of counsel), for respondent.
   OPINION OF THE COURT

Stein, J.

Defendant was convicted, following a jury trial, of criminal possession of a weapon in the second and third degrees, and unlawful possession of marihuana. Prior to trial, defendant moved to suppress a firearm recovered from his vehicle. At the ensuing hearing, a police detective testified regarding the circumstances of defendant’s arrest and the challenged search.

According to the hearing testimony, the detective was assigned to a joint task force responsible for executing parole warrants, as well as investigating and apprehending parole absconders. The detective and his partner received a warrant for defendant’s arrest that was issued as a result of numerous alleged parole violations. During their attempts to locate defendant, the detectives contacted his former girlfriend and provided her with their contact information in the event that she saw defendant. On the day in question, that girlfriend telephoned one of the detectives and informed him that defendant could be found in his vehicle at a specific location. However, when the detectives arrived at the location, defendant’s vehicle was not present.

The detectives left but, shortly thereafter, received another telephone call from the girlfriend. According to the testifying detective, she was “frantic” and relayed that defendant was in his vehicle with her son, who had informed her that there was a firearm in the car. The detectives returned to the same location and observed that defendant’s vehicle — identified through Department of Motor Vehicles records and information provided by the girlfriend — was present, but unoccupied, and the hood of the car was warm to the touch. The detectives arrested defendant in the apartment at that location, where he was present with the girlfriend’s son. Following defendant’s arrest on the parole warrant, the testifying detective entered and searched the vehicle for the firearm that had been reported; he found the weapon in a bag in the back seat.

Supreme Court denied defendant’s suppression motion, relying on both defendant’s parolee status and the tip that defendant had a gun in his vehicle. Upon defendant’s appeal, the Appellate Division affirmed (130 AD3d 651 [2d Dept 2015]), and a Judge of this Court granted leave to appeal (26 NY3d 1090 [2015]).

Defendant’s primary argument on this appeal is that the search was unlawful under our holding in People v Huntley (43 NY2d 175, 181 [1977]) because it was premised wholly on his status as a parolee, but was conducted by police officers, not by his parole officer. Under the circumstances of this case, defendant’s argument is unpersuasive.

We stated in Huntley that a parolee does “not surrender his [or her] constitutional rights against unreasonable searches and seizures” merely by virtue of being on parole (id.). However, we relied on the dual nature of a parole officer’s duties and a parolee’s reduced expectation of privacy to hold that a parolee’s constitutional right to be secure against unreasonable searches and seizures is not violated when a parole officer conducts a warrantless search that is rationally and reasonably related to the performance of the parole officer’s duties (see id. at ISO-182).

In Huntley, we distinguished between parole officers and police officers, noting that searches that may be reasonably justified if undertaken by a parole officer are not necessarily constitutional if undertaken by a police officer (see id. at 181). Nevertheless, we concomitantly observed that, “in any evaluation of the reasonableness of a particular search or seizure,” whether undertaken by parole or police officers, “the fact of defendant’s status as a parolee is always relevant and may be critical” (id.).

On the facts presented here, Huntley does not compel the conclusion that the search was unconstitutional (see 43 NY2d at 181). The detectives had a high degree of individualized suspicion based on a tip from a known individual — who correctly identified defendant’s vehicle and its location — indicating that defendant had a firearm in his vehicle, the recent arrival of which was corroborated by the absence of the vehicle during the detectives’ earlier visit and the warmth of the hood. In light of this tip, taken together with defendant’s reduced expectation of privacy, there is support in the record for the conclusion that the search of defendant’s vehicle was lawful and reasonable (see id.). Accordingly, defendant’s suppression motion was properly denied.

Defendant also contends that the trial court erred in rejecting as pretextual his proffered race-neutral reason for exercising a peremptory challenge as to a prospective juror. Inasmuch as our review of the trial court’s pretext determination is limited to whether it is supported by the record (see People v Hecker, 15 NY3d 625, 657 [2010], cert denied 563 US 947 [2011]), and we conclude that such support exists, reversal is not warranted. We agree with the Appellate Division that defendant’s remaining arguments, to the extent preserved, similarly lack merit.

Accordingly, the order of the Appellate Division should be affirmed.

Chief Judge DiFiore and Judges Rivera, Fahey, Garcia and Wilson concur.

Order affirmed.

       Defendant’s argument that the People did not preserve their reliance on probable cause at the suppression hearing is unavailing. The existence of the tip was raised at the hearing, and both the trial court and the Appellate Division relied, in part, on the suspicion provided by the tip in holding that the search was constitutional.


author: Chief Judge DiFiore.

text:
    [75 NE3d 1153, 53 NYS3d 592]
    The People of the State of New York, Respondent, v Jose Valentin, Appellant.
    Argued March 28, 2017;
    decided May 2, 2017

      POINTS OF COUNSEL

      Richard M. Greenberg, Office of the Appellate Defender, New York City (Kate Mollison, Joseph M. Nursey and Alejandro B. Fernandez of counsel), for appellant.

      Cyrus R. Vance, Jr., District Attorney, New York City {Brian R. Pouliot and David P. Stromes of counsel), for respondent.
   OPINION OF THE COURT

Chief Judge DiFiore.

We are asked to determine whether the People are permitted to introduce evidence of a defendant’s prior drug sale conviction on their direct case when a defendant asserts an agency-defense supported solely by portions of the People’s case-in-chief. We hold that, under these circumstances, the trial court may, in its discretion, entertain a People’s application pursuant to People v Molineux (168 NY 264 [1901]) and allow into evidence a defendant’s previous drug sale conviction on the issue of the intent to sell the drugs.

On the afternoon of May 21, 2010, several undercover officers were conducting a “buy-and-bust” operation near 110th Street and First Avenue in Manhattan. After watching defendant and another individual, Jose Barrios, walking together for approximately 40 minutes, one of the officers observed Barrios hand defendant money. Defendant then crossed the street and entered a 20-story residential building. After a few minutes, defendant exited the building and walked directly over to Barrios, who had since moved to another corner. The officer observed defendant hand what was later revealed to be glassine envelopes of heroin to Barrios, who then placed the glassine envelopes in his right front pants pocket. As the pair walked away together, they were stopped by police. The arresting officer recovered the two glassine envelopes of heroin from Barrios’s right pants pocket and another officer searched defendant and recovered eight dollars.

After completion of jury selection, defense counsel, who did not present any defense witnesses or call defendant to testify at trial, gave notice to the court and the People that there was “a possibility” that he would present an agency defense. Thereafter, defense counsel, in his opening statement, asked the jury to consider whether defendant engaged in “salesman-like . . . conduct,” whether he had customers other than Barrios, and whether his behavior was typical of a seller or, rather, someone who was “walkfing] with his buddy.”

During cross-examination of the police officers, defense counsel honed in on defendant’s behavior and whether defendant was simply acting as a mere extension of the buyer. Specifically, on cross-examination of the officer who was acting as “ghost” in the narcotics surveillance that day, defense counsel elicited that the officer observed defendant and Barrios standing together engaged in conversation, in support of his argument that the buyer was just a friend. Along the same lines of inquiry, defense counsel elicited from the officer that in the context of general narcotics operations, the officer sometimes knew “who the players are” but that defendant’s name and picture had never come up in the officer’s investigation of this drug-prone area. Finally, defense counsel, disputing the profit motive for the transfer of drugs, elicited that the going price of the two envelopes of heroin found on Barrios was usually about $10 per item. Only eight dollars was found on defendant.

In cross-examining the arresting officer, defense. counsel elicited that the police had observed defendant and Barrios walking together on the street for a period of approximately 40 minutes, in support of an argument that such behavior was consistent with a friendship and not a business relationship. Defense counsel also brought out that defendant was not found with any prerecorded money, typically used in undercover buys, and that the arresting officer did not take any steps to investigate any phone numbers in defendant’s cell phone.

Midtrial, the People inquired as to defendant’s intention regarding the agency defense, indicating that they would not rest without the opportunity to present evidence of defendant’s drug sale convictions. Defense counsel responded that he did not intend to call the buyer or defendant to the stand, explaining that his strategy was to “flush out” the testimony of the People’s witnesses to support the defense.

At the close of the People’s case but before they rested, defense counsel again raised the agency defense but argued that the People should not be permitted to introduce any of defendant’s prior sale convictions because the People’s evidence— and not the evidence presented by defendant — provided the basis for the agency defense. The court, after a colloquy as to whether there was even a factual basis for the agency charge in the first instance, determined that it would grant defendant’s request for an agency charge, but if the charge was to be given, the People would be permitted to introduce evidence of defendant’s prior drug sale conviction.

After consulting with defendant, defense counsel requested that the court give the agency charge to the jury. The trial court, exercising its discretion, determined that, despite defendant’s multiple drug-related convictions, the People would be permitted to introduce only defendant’s 1997 conviction of criminal sale of a controlled substance in the fifth degree. The stipulation as to defendant’s prior conviction was admitted into evidence with a proper limiting instruction, whereupon the People and defense rested and the trial court provided the agency charge to the jury. Defendant was convicted, upon a jury verdict, of criminal sale of a controlled substance in the third degree.

On appeal, the Appellate Division held that “[u]pon granting the defense request for an agency defense based upon aspects of the People’s evidence, the court properly allowed the People to introduce evidence of defendant’s prior drug sale conviction” (132 AD3d 499, 500 [1st Dept 2015]). The Appellate Division opined that there was

“no reason to draw a distinction between the situation where a defendant testifies or otherwise elicits evidence to support an agency defense, and the situation where, as here, the defendant essentially adopts those portions of the evidence elicited by the People that support such a defense; in each instance, the People have the right of rebuttal” (id.).

A Judge of this Court granted defendant leave to appeal (26 NY3d 1151 [2016]), and we now affirm.

Notwithstanding his request for an instruction to the jury on the agency defense, defendant argues that since the defense was supported solely by inferences drawn from the People’s evidence, he did nothing to affirmatively call his intent into question and, therefore, no Molineux evidence was permissible. We disagree.

Under Penal Law § 220.39 (1), “[a] person is guilty of criminal sale of a controlled substance in the third degree when he knowingly and unlawfully sells ... a narcotic drug.” To “sell” is broadly defined as meaning “not only a traditional sale or exchange for consideration, but also to ‘give or dispose of to another, or to offer or agree to do the same’ ” (People v Watson, 20 NY3d 182, 185 [2012], quoting Penal Law § 220.00 [1]). As we have previously explained, “[r]eading the statute literally, any passing of drugs from one person to another would constitute a sale” (People v Lam Lek Chong, 45 NY2d 64, 72 [1978]). This Court, however, long ago recognized that drug sale crimes involve harsh penalties and that “there are certain cases where the defendant’s mere delivery of the drugs does not appear to involve the same degree of culpability, or warrant the extreme penalties, associated with pushing drugs” (id.). Therefore, under the agency defense, “one who acts solely as the agent of a purchaser of narcotics cannot be convicted of the crime of criminal sale of a controlled substance” (People v Roche, 45 NY2d 78, 81 [1978]).

In New York, “[t]o be an agent of his buyer, a narcotics merchant must be a mere extension of the buyer” (People v Argibay, 45 NY2d 45, 53 [1978]). Indeed, “the agent must have no direct interest in the contraband being sold,” and “[h]is function must be performed without any profit motive” (Roche, 45 NY2d at 85). Of course, agency is not a defense to the charge of possession of the drugs (see Lam Lek Chong, 45 NY2d at 74). Accordingly, the finder of fact is required “to determine the extent of an intermediary’s criminal liability, either as a seller or a purchaser for another” (Watson, 20 NY3d at 186). As we have explained,

“Among other things the jury may consider the nature and extent of the relationship between the defendant and the buyer, whether it was the buyer or the defendant who suggested the purchase, whether the defendant has had other drug dealings with this or other buyers or sellers and, of course, whether the defendant profited, or stood to profit, from the transaction. But basically the jury must rely on its own common sense and experience to determine whether, under the circumstances, the defendant was in fact accommodating a friend or was simply a streetwise peddler attempting to avoid the penalties for sale” (Lam Lek Chong, 45 NY2d at 75).

That brings us to the admissibility of the Molineux evidence in this case. “[E]vidence of uncharged crimes is inadmissible where its purpose is only to show a defendant’s bad character or propensity towards crime” (People v Morris, 21 NY3d 588, 594 [2013]). “However, ‘[w]hen evidence of uncharged crimes is relevant to some issue other than the defendant’s criminal disposition, it is generally held to be admissible on the theory that the probative value will outweigh the potential prejudice to the accused’ ” (id., citing People v Allweiss, 48 NY2d 40, 47 [1979]). Intent is one of the “well-recognized, nonpropensity purposes for which uncharged crimes may be relevant” (id.). Generally, “[e]vidence of prior criminal acts to prove intent will often be unnecessary, and therefore should be precluded even though marginally relevant, where intent may be easily inferred from the commission of the act itself” (People v Alvino, 71 NY2d 233, 242 [1987]). In the context of drug sales in particular, “intent is [usually] readily inferable from the sale itself and evidence of prior uncharged crimes is neither necessary nor permissible to establish it” (id. at 246). Nonetheless, when the defendant interposes an agency defense — essentially disputing that his transfer of drugs to the buyer was with the intent to sell — evidence of prior uncharged drug sales is admissible to establish the element of intent on a sale count (see id.; see also Lam Lek Chong, 45 NY2d at 75). Even if the evidence of defendant’s prior drug sale is relevant to the issue of intent, however, the People’s request to introduce such evidence falls to the sound discretion of the trial court and is “admissible only upon a trial court finding that its probative value for the jury outweighs the risk of undue prejudice to the defendant” (People v Till, 87 NY2d 835, 836 [1995]).

In People v Small (12 NY3d 732 [2009]), a case in which the defendant did not present any defense witnesses, this Court held that, in response to the defendant’s attempt to establish an agency defense during the People’s case, the lower court “did not abuse its discretion in permitting the People to present Molineux evidence” on the issue of intent (id. at 733). Notably, in Small, the trial court “granted the People’s application to allow the Molineux evidence midtrial,” and this Court held that “there [was] no requirement that such inquiry or ruling occur before trial commences” {id.).

In this case, the trial court did not abuse its discretion in allowing the People to introduce evidence on their direct case of defendant’s prior drug sale conviction on the element of intent to sell. “[T]he agency charge [is] reserved for cases where there is at least some evidence, however slight, to support the inference that the supposed agent was acting, in effect, as an extension of the buyer” (Argibay, 45 NY2d at 55). As defendant bears no burden of proof in advancing this defense (see Roche, 45 NY2d at 85-86), it is immaterial whether a defendant testifies or presents defense witnesses in support of the agency defense or, as with the circumstances here, a defendant requests the agency charge based solely on inferences which arguably may be drawn from the People’s case-in-chief. In both scenarios, the trial court may entertain a Molineux application as to a defendant’s prior drug sale conviction and determine whether the evidence is more probative than prejudicial on the disputed issue of defendant’s intent to sell.

On this record, defendant plainly raised the issue of his intent and particular role in the drug sale as a salesman based on his arguments to the jury at trial, his cross-examination of the People’s witnesses, and his specific request for an agency charge to the jury. The trial court then conducted the proper balancing analysis, determining that it would permit introduction of only one of defendant’s prior convictions. Under these circumstances, the People were properly permitted by the trial court to use the admissible evidence of defendant’s prior drug sale conviction on the issue of intent in their case-in-chief.

Accordingly, the order of the Appellate Division should be affirmed.

Judges Rivera, Stein, Fahey, Garcia and Wilson concur.

Order affirmed.

      . The officer testified that as “ghost,” he was ensuring that the undercover officers were safe and relaying messages to the supervisor of the field team.

      . Here, the evidence of defendant’s prior drug sale conviction was presented on the People’s case-in-chief before they rested, not on rebuttal (see CPL 260.30 [7]).

      . Defendant’s reliance on People v Gonzalez (22 NY3d 539 [2014]) is misplaced. Gonzalez involved the interpretation of the statutory notice requirement for CPL 250.10 psychiatric evidence.


text:
    [75 NE3d 1165, 53 NYS3d 604]
    The People of the State of New York, Respondent, v Andrew R. Bushey, Appellant.
    Argued March 29, 2017;
    decided May 4, 2017

      POINTS OF COUNSEL

      Lipsitz Green Scime Cambria LLP, Buffalo (Barry Nelson Covert and Erin E. McCampbell of counsel), for appellant.

      Michael J. Flaherty, Jr., District Attorney, Buffalo (Raymond C. Herman and Michael J. Hillery of counsel), for respondent.
   OPINION OF THE COURT

Chief Judge DiFiore.

To ensure the safety of our roads, a police officer may run a license plate number through a government database to check for any outstanding violations or suspensions on the registration of the vehicle. We hold that such a check, even without any suspicion of wrongdoing, is permissible, and does not constitute a search. We further hold that information obtained indicating the registration of the vehicle is in violation of the law as a result of this check may provide probable cause for the officer to stop the driver of the vehicle.

I.

In the early morning hours of August 10, 2014, a Buffalo State University police officer observed a vehicle operated by defendant drive past him. The officer testified at the suppression hearing that he did not observe any violations of the Vehicle and Traffic Law, nor was defendant’s driving erratic or unusual in any way. Nevertheless, the officer manually entered the car’s license plate number into his patrol car’s computer system. This computer system was linked to a Department of Motor Vehicles (DMV) database which provided information about the registration of the vehicle and any potential suspensions or alerts associated with the vehicle. After running the plate, the officer discovered that the vehicle’s registration was suspended due to unpaid parking tickets and, acting upon that information, he followed and stopped the vehicle defendant was driving. During the traffic stop, again using the database, the officer learned that defendant’s license was also suspended. Based on his observations of defendant during the traffic stop, the officer arrested defendant for driving while intoxicated, along with violations for operating without a valid registration or license.

At the hearing granted upon defendant’s motion to suppress evidence, defendant challenged the lawfulness of the stop of the vehicle and his person, on the ground that the officer conducted an impermissible search when he ran the license plate of the vehicle through the DMV computer. Defendant argued that the officer had no legal basis to run the license plate number because the alleged standard for manually running a license plate is the same probable cause standard for stopping a person driving a vehicle. The People responded that defendant’s legal argument was not supported by case law, and in any event, that running the license plate did not constitute a police encounter or intrusion. Citing to People v Ingle (36 NY2d 413 [1975]), the suppression court ruled that the officer had no cause to run the license plate and no reasonable suspicion to justify his stop of the car, and thus suppressed the evidence and dismissed the charges. The intermediate appellate court reversed, determining that both the license plate check and the stop were lawful. A Judge of this Court granted defendant leave to appeal (26 NY3d 1108 [2016]), and we now affirm.

II.

We start with the premise that “[s]ince Katz, the existence of a privacy interest within the Fourth Amendment’s protective ambit has been understood to depend upon whether the individual asserting the interest has demonstrated a subjective expectation of privacy and whether that expectation would be accepted as reasonable by society” (People v Weaver, 12 NY3d 433, 439 [2009], citing Katz v United States, 389 US 347, 361 [1967, Harlan, J., concurring]). The question we must answer here is whether a driver has a reasonable expectation of privacy in information provided to the DMV concerning his or her registration of a vehicle operated on a public roadway, which is accessible to police officers through the DMV database.

As defendant concedes, a driver does not have any reasonable expectation of privacy in the license plate number itself, nor would any expectation in such publicly exposed information be recognized as reasonable by society. We now conclude that a driver has no expectation of privacy in the DMV database information associated with a license plate number. Our Vehicle and Traffic Law provides a comprehensive set of requirements for lawfully operating a vehicle in the State of New York. It mandates that

“[n]o person shall operate, drive or park a motor vehicle on the public highways of this state unless such vehicle shall have a distinctive number assigned to it by the commissioner and a set of number plates issued by the commissioner with a number and other identification matter if any, corresponding to that of the certificate of registration conspicuously displayed” (Vehicle and Traffic Law § 402 [1] [a]).

We have long recognized that “[o]ne of the important objects of registration of motor vehicles is to facilitate the identification of the owner” (Shuba v Greendonner, 271 NY 189, 192 [1936]; see also Matter of Froslid v Hults, 20 AD2d 498, 503 [2d Dept 1964] [“the purpose of the license plate of an automobile is for ready identification of the owner by the police and by the public”]). This purpose is accomplished when a police officer is able to observe the physical plate number and access DMV information associated with it.

Though this Court has not addressed the particular question of whether a license plate check constitutes a search, every federal circuit that has considered the issue has held that it does not (see United States v Miranda-Sotolongo, 827 F3d 663, 668 [7th Cir 2016] [“observing and recording the registration number was not a search within the meaning of the Fourth Amendment. Nor was it a search to use the registration tag number (in which defendant had no reasonable expectation of privacy) to retrieve the registration information present in the law enforcement database”]; United States v Sanchez, 612 F3d 1, 3 n 1 [1st Cir 2010]; United States v Diaz-Castaneda, 494 F3d 1146, 1152 [9th Cir 2007] [“when police officers see a license plate in plain view, and then use that plate to access additional non-private information about the car and its owner, they do not conduct a Fourth Amendment search”]; United States v Ellison, 462 F3d 557, 563 [6th Cir 2006] [“Thus, so long as the officer had a right to be in a position to observe the defendant’s license plate, any such observation and corresponding use of the information on the plate does not violate the Fourth Amendment”]; Olabisiomotosho v City of Houston, 185 F3d 521, 529 [5th Cir 1999]; United States v Walraven, 892 F2d 972, 974 [10th Cir 1989]). Lower courts of this state reached the same conclusion (see People v Davila, 27 Misc 3d 921, 925 [Sup Ct, Bronx County 2010], affd 137 AD3d 655 [1st Dept 2016]; People v Diggs, 38 AD3d 565, 565 [2d Dept 2007], lv denied 9 NY3d 922 [2007]; People v Brown, 306 AD2d 291, 291 [2d Dept 2003], lv denied 100 NY2d 618 [2003]), as have courts in other states (see People v Goodum, 356 Ill App 3d 1081, 1085-1086, 828 NE2d 835, 840 [2005]; Commonwealth v Muckle, 61 Mass App Ct 678, 681, 814 NE2d 7, 11 [2004]; State v Richter, 145 NH 640, 640-641, 765 A2d 687, 688 [2000]).

Because the purpose of a license plate is to readily facilitate the identification of the registered owner of the vehicle for the administration of public safety, a person has no reasonable expectation of privacy in the information acquired by the State for this purpose and contained in a law enforcement or DMV database. Indeed, the information is typically provided voluntarily by a driver to a government agency in exchange for the privilege of a valid license and registration. Considering that police officers are authorized by law to inspect and check for violations of licensing and registration requirements (see Vehicle and Traffic Law §§ 390, 401), drivers cannot claim any objectively reasonable expectation of privacy with respect to the DMV information being obtained by law enforcement. An officer’s observation of that which is publicly displayed and the use of the information relative thereto contained in the DMV database does not violate defendant’s Fourth Amendment rights, nor any provision of our New York State Constitution. As defendant did not have any reasonable expectation of privacy in either his license plate or the information lawfully obtained and accessible through the DMV database, there was no search or seizure cognizable under federal or state constitutional law.

III.

Police stops of automobiles in New York State are legal “when there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime” (People v Spencer, 84 NY2d 749, 753 [1995]). While “a police officer may [not] stop an automobile, arbitrarily chosen from the stream of traffic on a public highway only because of the unusual but irrelevant appearance of the vehicle, solely to examine the motorist’s license and registration” (Ingle, 36 NY2d at 414), defendant’s freedom of movement was never “stopped” until after the officer ran his license plate and obtained probable cause to believe the vehicle was being operated with a suspended registration. We prohibit arbitrary traffic stops because they constitute unreasonable “seizures” of persons in violation of the constitution (see id. at 418). But here, the stop of defendant’s car occurred only after the check had supplied the officer a reason to do so. And while we are mindful of the concerns about license plate checks,

“the possibilities of database error and police officer abuse, while real, do not create a legitimate expectation of privacy where none existed before. Government actions do not become Fourth Amendment searches simply because they might be carried out improperly. If an officer does go outside the proper bounds of a license plate search, it is that misconduct that might give rise to a constitutional or statutory violation” (Diaz-Castaneda, 494 F3d at 1152).

Nothing in the record before us suggests there was anything unreasonable about the police officer’s actions or that the officer had any illegal motives. He ran the license plate and accessed the DMV database in the performance of his official duties. Therefore, the check was lawful, and the information from the database provided him with a valid reason to stop defendant’s car.

Accordingly, the order of the County Court should be affirmed.

Judges Rivera, Stein, Fahey, Garcia and Wilson concur.

Order affirmed.

      . Defendant argues on appeal that the officer may have accessed private information, such as his Social Security number. Although this argument is not preserved for our review, we note that the record indicates only that the DMV database used by the officer here gave information about the vehicle’s registration and defendant’s license status, and the officer testified that the only relevant factor he discovered before stopping defendant was that the registration was suspended due to unpaid parking tickets.

      . To the extent defendant relies on the “Driver’s Privacy Protection Act of 1994,” which governs the release of information contained in DMV databases, that statute creates no reasonable expectation that license and registration information is kept private from law enforcement. The statute permits the release of DMV information “[f]or use by any government agency, including any court or law enforcement agency, in carrying out its functions” (18 USC § 2721 [b] [1]).