People v. Mingo

OPINION OF THE COURT

Ritter, J.

The issue to be decided on this appeal is whether documents generated by the District Attorney’s office in prosecuting the defendant on the underlying indictment constituted “reliable hearsay” within the meaning of the Sex Offender Registration Act (Correction Law art 6-C [hereinafter SORA]) and provided clear and convincing evidence that the defendant was armed with a dangerous instrument during the commission of his sex offense. We find that they did and affirm the defendant’s designation as a level two sex offender.

In 1988, the defendant was indicted for rape in the first degree, sexual abuse in the first degree, sodomy in the first degree, assault in the second and third degrees, and criminal possession of a weapon in the fourth degree. According to documents generated by the District Attorney’s office, including those at issue on this appeal, the facts giving rise to the indictment are that the victim was walking down the street when the defendant jumped out of an abandoned van, dropped a beer bottle, and asked her, “Do you want to have a good time?” The defendant then forced the victim into the van where he struck her about the head and face, bit and choked her, compelled her to perform oral sex, and placed his penis in her vagina. During the attack, the defendant brandished a chrome/metal strip and threatened to strike the victim with it if she did not continue. The victim was able to escape and promptly flagged down a passing police officer, who arrested the defendant at the scene. Evidence recovered by the police at the scene included a chrome/ metal strip.

In 1990, the defendant pleaded guilty to the top count of rape in the first degree (see Penal Law § 130.35 [1]) in satisfaction of all charges contained in the indictment in exchange for a bargained-for sentence of 2 to 6 years’ imprisonment. The defendant’s initial sex offender status designation under SORA is not clear from the record. However, in 2006, acting upon the stipulation of settlement agreed to in Doe v Pataki (3 F Supp 2d 456 [1998]), the defendant was granted a redetermination of his status. Thus, the SORA determination being challenged on this appeal was made approximately 18 years after the underlying crime was committed, and 16 years after the defendant’s guilty plea. As a result of the redetermination hearing, the defendant was assessed a total of 85 points on the risk assessment instrument (hereinafter the RAI), making him a presumptive risk level two sex offender. This total included the assessment of 30 points for being armed with a dangerous instrument during the commission of his sex offense. At the SORA hearing, the People proffered the underlying indictment and various documents taken from the District Attorney’s file, including, inter alia, an “Early Case Assessment Bureau Data Sheet,” a “Grand Jury Synopsis Sheet,” and a “Data Analysis Form.” The documents described the factual scenario noted above. Defense counsel did not object to receipt of the documents, but argued that they were not sufficient to provide clear and convincing evidence that the defendant was armed with a dangerous instrument during the commission of his sex offense. Specifically, counsel asserted that the “Grand Jury Synopsis Sheet” and “Data Analysis Form,” both of which described the defendant’s use of the chrome/metal strip, did not constitute “reliable hearsay” within the meaning of SORA. Concerning the “Grand Jury Synopsis Sheet,” counsel argued: “The document is unsigned, unsworn, uncorroborated; I don’t know where it came from, unreliable hearsay. It is not supported by any other reliable documentation, other documents that would have been found to be reliable by the courts.” Finally, defense counsel argued, the defendant’s guilty plea to rape in the first degree pursuant to Penal Law § 130.35 (1) established only forcible compulsion, not that he was armed with a dangerous instrument. The Supreme Court, finding the documents constituted reliable hearsay within the meaning of SORA, and provided clear and convincing evidence that the defendant was armed with a dangerous instrument during the commission of his sex offense, adjudicated him to be a level two sex offender. We affirm.

The People bear the burden of proving the facts supporting a SORA determination by “clear and convincing evidence” (Correction Law § 168-n [3]; see People v Dong V Dao, 9 AD3d 401 [2004]; People v Collazo, 7 AD3d 595 [2004]). Clear and convincing evidence is evidence that satisfies the factfinder that it is highly probable that what is claimed actually happened (see Ausch v St. Paul Fire & Mar. Ins. Co., 125 AD2d 43, 45 [1987]; see also Colorado v New Mexico, 467 US 310 [1984]; Doe v Pataki, 3 F Supp 2d 456 [1998]). The range of materials that may be considered by a court in a SORA proceeding in determining whether this standard has been met is broad. By statute, the court “shall review any victim’s statement and any relevant materials and evidence submitted by the sex offender and the district attorney and the recommendation and any materials submitted by the board, and may consider reliable hearsay evidence submitted by either party, provided that it is relevant to the determinations’ ’ (Correction Law § 168-n [3]; see People v Hegazy, 25 AD3d 675 [2006]). Concerning “materials submitted by the board,” the SORA Guidelines provide:

“Completing the risk assessment instrument will often require the Board or a court to review the case file to determine what occurred. Points should not be assessed for a factor—e.g., the use of a dangerous instrument—unless there is clear and convincing evidence of the existence of that factor. This evidence can be derived from the sex offender’s admissions; the victim’s statements; the evaluative reports of the supervising probation officer, parole officer or corrections counselor; or from any other reliable source” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 5 [2006]).

Thus, the statutory language and the SORA Guidelines permit the admission and consideration of hearsay well beyond that generally admissible into evidence (see generally Nucci v Proper, 95 NY2d 597 [2001]). Indeed, in practice, the materials submitted by the Board of Examiners of Sex Offenders to the court generally consist of the RAI and the accompanying case summary, which is often replete with hearsay culled from a variety of secondary sources, such as arrest and probation reports, and the courts have affirmed SORA determinations based on no more, or little more, than the facts set forth in such materials (see e.g. People v Thompson, 31 AD3d 409 [2006]; People v O'Neal, 26 AD3d 365 [2006]; People v White, 25 AD3d 677 [2006]; People v Overman, 7 AD3d 596 [2004]; People v Burgess, 6 AD3d 686 [2004]; People v Oquendo, 1 AD3d 421 [2003]). This is consistent with the nature of a SORA proceeding itself, which, although arising from a criminal conviction, is “predominantly regulatory” (People v Stevens, 91 NY2d 270, 275 [1998]). Thus,

“risk level classification hearings fall ‘somewhere between a criminal proceeding in which a defendant is entitled to a full panoply of rights . . . and a simple administrative proceeding, in which participants have traditionally been afforded less process. Certainly, 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’ ” (People v Brooks, 308 AD2d 99, 105 [2003], quoting Doe v Pataki, 3 F Supp 2d at 470).

Here, the documents proffered by the People fell within the penumbra of the type of materials identified by the statute and SORA Guidelines as permissible sources of reliable hearsay, and provided clear and convincing evidence that the defendant was armed with a dangerous instrument during the commission of his sex offense. In addition to the documents reciting facts that would have been known only to the victim, the seizure by the police of the chrome/metal strip—an object not obviously a weapon on its face—is explained only by its use as such during the underlying sex offense. We disagree with our dissenting colleague that any ambiguities and/or inconsistencies in and between the documents impeached their fundamental character as an accurate and reliable recitation of the relevant facts. Nor do we find such impeachment in the fact that the documents were unsigned, unsworn, and uncorroborated. The documents, by their nature, are not ones that would be signed or sworn, and the defendant should not benefit from the lack of a more developed record of the criminal proceeding when the proceeding was terminated by acceptance of his guilty plea. In addition, given the relaxed evidentiary standard and due process concerns in a SORA proceeding, it is appropriate to consider the age of the underlying criminal conviction and its presumptive effect on the availability of documents, transcripts, and other evidence from the criminal proceeding (e.g., the grand jury minutes), including the availability of testimony from the persons who generated the documents, etc., or who were otherwise involved. Finally, as noted by our dissenting colleague, “the fact that an offender was arrested or indicted for an offense is not, by itself, evidence that the offense occurred” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 5 [2006]). Here, however, the defendant’s plea to the top count of the indictment, which included an admission to the use of forcible compulsion, enhances the reliability of a finding that he was armed with a chrome/metal strip during the commission of his sex offense. This admission, coupled with the other evidence received, is a perfect fit with the language of the SORA Guidelines. In sum, the defendant’s adjudication as a level two sex offender is affirmed.