People v. Wells

138 A.D.3d 947, 30 N.Y.S.3d 198

Opinions

Appeal by the defendant from an order of the Supreme Court, Queens County (Margulis, J.), dated May 2, 2013, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

In May 1998, the defendant invited his then 17-year-old biological daughter (hereinafter the victim) to visit him at his apartment in Queens County. According to the victim, while she was asleep, the defendant removed her pajama shorts and underwear, and pushed her pajama top up so as to expose her breasts. The victim awoke to find the defendant on top of her, kissing her breasts. Thereafter, the defendant continued to kiss the victim’s breasts, placed his mouth on her vagina, and inserted his peiiis inside her vagina. He told the victim to “close [her] eyes and think about something else” while he engaged in sexual intercourse with her, until finally ejaculating on her leg.

For these acts, the defendant was charged, under Queens County indictment No. 2500/98, with sexual abuse in the first degree (Penal Law § 130.65 [2]), sexual abuse in the third degree (Penal Law § 130.55), incest in the third degree (Penal Law § 255.25), and sexual misconduct (two counts) (Penal Law § 130.20 [1], [2]).

Following a nonjury trial, by judgment rendered June 7, 2000, the defendant was convicted of sexual abuse in the third degree, incest in the third degree, and sexual misconduct (two counts). He was acquitted on the count of sexual abuse in the first degree.

Upon the defendant’s appeal from the judgment of conviction, this Court affirmed the judgment (see People v Wells, 289 AD2d 599 [2001]). The Court of Appeals denied the defendant’s motion for leave to appeal (see People v Wells, 98 NY2d 641 [2002]). At the time he committed the instant offenses, the defendant was under parole supervision based upon his conviction of various crimes unrelated to the instant matter. Those crimes included murder in the second degree, for which the defendant was sentenced to an indeterminate term of imprisonment of 15 years to life.

In a case summary and risk assessment instrument (hereinafter RAI) dated March. 7, 2013, completed by the Board of Examiners of Sex Offenders (hereinafter the Board) pursuant to the Sex Offender Registration Act (Correction Law art 6-C [hereinafter SORA]), the Board assessed the defendant a total of 85 points, which presumptively placed the defendant in a risk level two category. As particularly relevant to the instant appeal, the defendant was assessed 20 points under risk factor 6. Specifically, in the case summary, the Board explained that the basis for the assessment of those points was that the victim was “physically helpless as the abuse began because she was asleep.”

Prior to the SORA hearing, the People referred the Supreme Court (hereinafter the SORA Court) to the victim’s grand jury testimony, and argued that this testimony established, by clear and convincing evidence, that the victim was sleeping when the abuse began. Defense counsel submitted an affirmation dated April 8, 2013, in opposition to the assessment of points under risk factor 6 or, in the alternative, for a downward departure. Defense counsel attached to his affirmation, inter alia, the case summary and the RAI. In his affirmation, counsel recounted the victim’s trial testimony that she awoke from sleep to find the defendant engaging in sexual activity with her. Counsel then argued that the verdict acquitting the defendant of sexual abuse in the first degree necessarily indicated that the trial court had not credited the victim’s claim that she awakened in the middle of being sexually abused. Thus, counsel maintained that there was no reliable basis upon which to find that the victim was asleep at the beginning of the incident and assess points for physical helplessness.

A SORA hearing was subsequently conducted on May 2, 2013. At the commencement of the hearing, defense counsel noted that, although the defendant’s conviction occurred after a trial, the People were relying on grand jury minutes which had not been provided to the SORA Court or the defendant. Counsel added, “since the People have not provided me with the documents on which they are relying in this case, specifically the Grand Jury minutes, they should not be heard to argue as to their contents.” In response, the prosecutor stated that the People did not have the trial testimony. The prosecutor did, however, provide the SORA Court and defense counsel with the “complaint report” and the indictment. Further, the prosecutor submitted the victim’s grand jury minutes for the court’s in camera review. The court offered the defendant an adjournment so that he could respond to “anything” the prosecutor had filed. The defendant, however, declined the court’s offer of an adjournment.

The prosecutor argued that, at the trial, physical helplessness was “not charged in this case”; however, “the facts support [ed] a theory of physical helplessness for the sexual abuse.” Defense counsel countered that, at the trial, physical helplessness was, in fact, charged with regard to the sexual abuse in the first degree count, of which the defendant was acquitted. Defense counsel then reiterated that the trial court had “rejected” the victim’s credibility as to her testimony that she was asleep when the abuse began.

In an order dated May 2, 2013, the SORA Court designated the defendant a level two sex offender. In its findings of fact, the court stated that it had reviewed the Board’s RAI and the case summary. The court stated that it did “not know” and “neither party had shown” why the trial court had acquitted the defendant of sexual abuse in the first degree. The SORA Court declined to find that, in acquitting the defendant of that count, the trial court discredited the victim’s testimony or determined that the People had failed to prove the element of physical helplessness. Thereafter, upon relying on the victim’s testimony before the grand jury that she was asleep when the defendant first had sexual contact with her, the court assessed 20 points under risk factor 6.

The SORA guidelines provide for the assessment of 20 points under risk factor 6 if the victim suffered from, inter alia, “physical helplessness” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 11 [2006]). “Physical helplessness” means that “a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act” (Penal Law § 130.00 [7]). This Court and others have found that definition to include a victim who was asleep at the beginning of the incident (see e.g. People v Acevedo, 124 AD3d 500 [2015]; People v Richardson, 101 AD3d 837, 838 [2012]; People v Duff, 96 AD3d 1031 [2012]; People v Howell, 82 AD3d 857 [2011]; People v Caban, 61 AD3d 834, 835 [2009]; People v Harris, 46 AD3d 1445, 1446 [2007]).

In establishing a sex offender’s appropriate risk level assessment under SORA, the People have “the burden of proving the facts supporting the determinations sought by clear and convincing evidence” (Correction Law § 168-n [3]; see People v Wyatt, 89 AD3d 112, 117-118 [2011]). “In assessing points, evidence may be derived from the defendant’s admissions, the victim’s statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board ... or any other reliable source, including reliable hearsay” (People v Crandall, 90 AD3d 628, 629 [2011]; see People v Mingo, 12 NY3d 563, 573 [2009] [case summaries, presentence reports, and grand jury testimony meet the “reliable hearsay” standard for admissibility at SORA proceedings]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5; People v Finizio, 100 AD3d 977, 978 [2012]). A victim’s grand jury testimony has been found to constitute “reliable hearsay” which is routinely relied upon by courts in assessing points under SORA (see e.g. People v Mingo, 12 NY3d at 573; People v Lancaster, 128 AD3d 786, 787 [2015]; People v Welch, 126 AD3d 773 [2015]; People v Acevedo, 124 AD3d at 500; People v Duff, 96 AD3d at 1031).

The crux of the defendant’s argument on the instant appeal is that the People’s in camera submission of the minutes of the victim’s grand jury testimony, without disclosure to him, and the SORA Court’s consideration of those minutes in assessing the 20 points under risk factor 6, violated his due process rights. At no time during the SORA hearing did the defendant request access to those grand jury minutes. Inasmuch as the defendant did not request access to the subject grand jury minutes, there is no need to discuss the “two-step procedure” applicable to the disclosure of grand jury minutes (i.e., the defendant must demonstrate a compelling and particularized need for the minutes, after which the court must undertake a balancing of various factors to assess whether disclosure is appropriate under the circumstances presented [see CPL 190.25 (4); People v Robinson, 98 NY2d 755, 756 (2002); People v Fetcho, 91 NY2d 765, 769 (1998); Matter of Lungen v Kane, 88 NY2d 861, 862-863 (1996)]). In addition, the defendant did not argue that he was deprived of any due process protections because the People had submitted those minutes to the SORA Court for an in camera review and had not disclosed them to him. Thus, these contentions are unpreserved for appellate review (see People v Rodriguez, 21 NY3d 1030, 1031 [2013]; People v Charache, 9 NY3d 829, 830 [2007]; People v Wise, 127 AD3d 834, 834-835 [2015]; People v Leach, 106 AD3d 1387, 1388 [2013]; People v McLean, 55 AD3d 973, 974 [2008]; People v Cureton, 299 AD2d 532 [2002]).

In any event, contrary to the defendant’s contentions, reversal is not warranted in this case. SORA is regulatory rather than criminal in nature and is not intended to serve as a form of punishment (see People v Gravino, 14 NY3d 546, 556-557 [2010]; People v Pettigrew, 14 NY3d 406, 408 [2010]; People v Stevens, 91 NY2d 270, 275 [1998]; People v Gallagher, 129 AD3d 1252 [2015]; People v Parilla, 109 AD3d 20, 23-24 [2013]). Thus, “the due process protections required for a risk level classification proceeding are not as extensive as those required in a plenary criminal or civil trial” (Doe v Pataki, 3 F Supp 2d 456, 470 [SD NY 1998] [internal quotation marks omitted]; see People v Gutierrez-Lucero, 103 AD3d 89, 98 [2012]). However, a sex offender facing a risk level classification under SORA is entitled to certain fundamental due process protections, including notice and an opportunity to be heard (see People v Gutierrez-Lucero, 103 AD3d at 101). These rights include: (1) a judicial determination of his or her risk level classification, (2) notice of the classification proceeding sufficiently in advance of the hearing to prepare a challenge, (3) notice of the proceeding which includes a statement of its purpose and the Board’s recommended risk level classification, (4) representation by counsel, (5) prehearing discovery, (6) proof by the State of the facts supporting each risk factor by clear and convincing evidence, and (7) a right to appeal (see Correction Law § 168-n; People v David W., 95 NY2d 130, 133 [2000]; People v Gutierrez-Lucero, 103 AD3d at 98; People v Brooks, 308 AD2d 99, 103 [2003]; Doe v Pataki, 3 F Supp 2d at 471-473).

The Court of Appeals was recently presented with the issue of whether a defendant’s due process rights were violated when the hearing court relied, in part, upon grand jury minutes that were not disclosed to the defense in reaching the defendant’s SORA risk level determination {see People v Baxin, 26 NY3d 6 [2015]). The Court found that “[g]iven that [the] defendant is entitled to broad discovery of the evidence that is used against him in order to be able to defend himself . . . the failure to disclose the grand jury minutes was a due process violation” (id. at 11). Significantly, the Court concluded that, given the overwhelming evidence which was disclosed to the defendant in support of the same risk factor, the error was harmless (see id. at 8, 11-12). It further recognized that “[t]his is not to say that grand jury minutes must be disclosed to the defendant in every SORA proceeding as a matter of course. It remains within the hearing court’s discretion to limit the release of such minutes” (id. at 11).

Guided by these principles, even assuming that the defendant should have had disclosure of the subject grand jury minutes, as in Baxin, any error in failing to disclose them was harmless. There was overwhelming, unchallenged evidence, which provided the requisite clear and convincing evidence supporting the assessment of 20 points under risk factor 6. The record on appeal reveals that the defendant was amply notified through statements contained in the case summary, the presentence report, and other disclosed evidence of the victim’s version of the facts and, specifically, her account that she was asleep when the abuse began. Indeed, defense counsel specifically challenged the assessment of points for physical helplessness based upon the victim’s account of being asleep when the sexual abuse began. The portion of the victim’s grand jury testimony relied upon by the SORA Court, namely, that the victim was asleep at the beginning of the incident, is the exact account contained in the case summary, which was fully disclosed to the defendant. Under these circumstances, the victim’s grand jury testimony was cumulative to the disclosed evidence (see People v Frosch, 69 AD3d 699, 700 [2010]).

The fact that the victim’s grand jury testimony was merely cumulative to the disclosed evidence belies the defendant’s claim of prejudice (see id. at 700). The defendant’s contention that, as a result of the nondisclosure, he was deprived of an opportunity to prepare a challenge and rebut the People’s arguments is not supported by the record. At the SORA hearing, the defendant’s counsel argued, at length, regarding risk factor 6 and urged the SORA Court to reject the victim’s account that she was asleep when the abuse began.

The consistent element throughout this case has been the victim’s description of the details of the sexual abuse and her physical and emotional condition at the time of the abuse. Her account was presented to the grand jury, and provided the basis for the indictment. Further, the defendant’s counsel acknowledged at the SORA hearing that the victim testified at the trial that she was asleep at the beginning of the sexual abuse. Counsel also referenced a UF-61 complaint report that contained the same narrative by the victim. The issue of physical helplessness permeated the entire underlying prosecution. The victim’s account of the events and, in particular, that she was asleep when the abuse began, remained consistent from the very beginning. In the face of this reality, the defendant’s argument that the nondisclosure of the grand jury minutes requires reversal of the order is unsustainable.

Our dissenting colleague contrasts Baxin with the instant case on the ground that the defendant herein was convicted following a nonjury trial, whereas the defendant in Baxin pleaded guilty to committing various sexual offenses. The dissent concludes that the defendant herein disputed at the trial the People’s theory that the complainant was asleep when the abuse began and was ultimately acquitted of the sexual abuse in the first degree count. The record on appeal does not establish what was disputed at the trial, whether the element of physical helplessness was, in fact, challenged, if so how, or why the defendant was acquitted of the sexual abuse in the first degree count.

The defendant’s contention that the SORA Court “speculated” as to why the defendant was acquitted on the count of sexual abuse in the first degree is without merit. In fact, a reading of the record shows the exact opposite to be true. The court expressly declined both to speculate as to the trial court’s reasons for the acquittal and to hypothesize that the reasons for that acquittal were based upon a finding that the victim was incredible or a determination that the People had failed to prove the element of physical helplessness. The fact that the defendant was acquitted at the trial of sexual abuse in the first degree established only that the trial court did not find all the elements of that offense to have been proved beyond a reasonable doubt, a more rigorous standard of proof than the clear and convincing standard applicable to SORA determinations (see People v Kost, 82 AD3d 729 [2011]; People v Vasquez, 49 AD3d 1282, 1284 [2008]).

The dissent’s reliance on several cases discussing harmless error in the context of criminal convictions (see e.g. People v Alexander, 94 NY2d 382 [1999]; People v Garnes, 127 AD3d 1104 [2015]; People v Smith, 288 AD2d 496 [2001]; People v Robinson, 260 AD2d 508 [1999]) is misplaced. These cases conclude that the evidence of the defendant’s “guilt” was not overwhelming under the “beyond a reasonable doubt” standard of proof and do not employ the less stringent “clear and convincing” standard of proof applicable in establishing a defendant’s risk level assessment pursuant to SORA (compare CPL 70.20 with Correction Law § 168-n [3]).

The defendant’s remaining contentions, including his claim that he was entitled to a downward departure, are without merit.

Accordingly, the defendant was properly designated a level two sex offender.

Rivera, J.P., Hinds-Radix and Duffy, JJ., concur.