TERNOOIS, III, FRANKLIN G., PEOPLE v , 35 N.Y.S.3d 622 ( 2016 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
629
KA 15-00655
PRESENT: SMITH, J.P., CENTRA, CARNI, CURRAN, AND SCUDDER, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
FRANKLIN G. TERNOOIS, III, DEFENDANT-APPELLANT.
JAMES S. KERNAN, PUBLIC DEFENDER, LYONS (DAVID M. PARKS OF COUNSEL),
FOR DEFENDANT-APPELLANT.
RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF
COUNSEL), FOR RESPONDENT.
Appeal from an order of the Wayne County Court (Dennis M. Kehoe,
J.), dated March 2, 2015. The order determined that defendant is a
level two risk pursuant to the Sex Offender Registration Act.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Defendant appeals from an order determining that he
is a level two risk pursuant to the Sex Offender Registration Act
([SORA] Correction Law § 168 et seq.). Defendant contends that County
Court’s assessment of 25 points in the risk assessment instrument
under risk factor 2, sexual contact with victim, for engaging in “anal
sexual conduct” with the seven-year-old victim is not supported by the
requisite clear and convincing evidence (Sex Offender Registration
Act: Risk Assessment Guidelines and Commentary, at 9 [2006]; see
Correction Law § 168–n [3]). We reject that contention. The People
submitted, inter alia, defendant’s sworn postarrest statement to the
police, made shortly after the incident, in which he admitted that he
anally raped the victim by penetrating her anus with his penis. The
People also submitted a presentence report reflecting that, during the
presentence interview with the Probation Department, defendant
admitted that he penetrated the victim’s anus with his penis. The
presentence report also reflects that defendant equivocated on that
admission later in the interview. We note, however, that “where an
unsworn statement is equivocal, inconsistent with other evidence, or
seems dubious in light of other information in the record, a SORA
court is free to disregard it” (People v Mingo, 12 NY3d 563, 577).
Here, we conclude that the court properly disregarded defendant’s
equivocation during the presentence interview as an attempt to
distance himself from his prior sworn statement to the police.
Alleged inconsistencies in the victim’s account do not preclude
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KA 15-00655
the assessment of the disputed points. During a sexual abuse forensic
investigation five months after the incident, the victim gave an
inconsistent description of the sexual contact, but the investigator
concluded that the victim had been coached by her mother in an effort
to protect defendant. Thus, contrary to defendant’s contention, we
conclude that the court’s assessment of 25 points under risk factor 2
is supported by clear and convincing evidence (see People v Ramirez,
53 AD3d 990, 991, lv denied 11 NY3d 710; People v Walker, 15 AD3d 692,
692).
Entered: July 8, 2016 Frances E. Cafarell
Clerk of the Court