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Correction Law § 168-n (3) ….cont

A defendant’s risk level is adjudicated at a SORA hearing, which is civil in nature. Correction Law § 168-n (3) directs that “the State shall appear by the district attorney who shall bear the burden of proving the facts supporting the determinations sought by clear and convincing evidence”. In determining the appropriate risk level, “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”. The Board of Examiners of Sex Offenders has explained that the information used to determine defendant’s risk level “can be derived from the sex crimes 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”. Beyond this, neither the Legislature nor the Board of Examiners of Sex Offenders have further specified the types of evidentiary materials admissible in a SORA proceeding. But one thing is undisputed—the Legislature did not limit the proof to what would be admissible at a civil or criminal trial. Defendants suggest that this Court apply the standards developed in other administrative and preliminary hearing contexts to fashion an admissibility standard, such as the multi-factored analysis employed in federal disability benefits cases or the Aguilar-Spinelli test used by New York courts to assess whether there was probable cause for a search or arrest. While the approaches taken in these other spheres are certainly helpful in identifying factors relevant to our analysis, SORA proceedings further an important and unique public safety function and we therefore decline to adopt wholesale a body of evidentiary rules developed in another context.

To determine a standard of admissibility for risk level determination hearings, we begin by reviewing the evidence New York courts have consistently deemed reliable in SORA proceedings. The Appellate Divisions have routinely upheld determinations based on information found in case summaries prepared by the Board of Examiners of Sex Offenders and presentence reports prepared by a probation department for use by sentencing courts. The Board of Examiners of Sex Offenders is charged with producing accurate case summaries as an integral part of its functions and it has expertise culling through records to produce a concise statement of the factual information relevant to defendant’s risk of re-offense. Similarly, to assist the court in imposing an appropriate sentence, probation departments are charged with gathering a wide variety of information for inclusion in presentence reports-reports that “may well be the single most important document at both the sentencing and correctional levels of the criminal process”.

Case summaries and presentence reports are prepared with the knowledge that they will be relied on by courts. No foundation is necessary for their consideration at SORA hearings because such documents are created under statutory mandates and their origins and function are well-known to SORA courts. Of course, information found in a case summary or presentence report need not always be credited—it may be rejected when it is unduly speculative or its accuracy is undermined by other more compelling evidence. But case summaries and presentence reports certainly meet the “reliable hearsay” standard for admissibility at SORA proceedings.

Similarly, grand jury testimony has been deemed sufficiently trustworthy for SORA purposes. Although not subject to cross-examination, this evidence is taken under oath, a significant, though not indispensable, indication of reliability. Other sworn documents have also been consistently accepted by SORA courts, including misdemeanor and felony complaints. Similar to case summaries and presentence reports, no foundation is necessary to justify receipt of this type of evidence at a SORA hearing because the circumstances surrounding the development of the proof are evident from the face of the document and are well understood by a SORA court.

With this in mind, we turn to the purpose underlying SORA—to protect the public from sex offenders. Given the significance of the mission, an accurate determination of the risk a sex offender poses to the public is the paramount concern. We conclude that hearsay is reliable for SORA purposes—and, therefore, admissible—if, based on the circumstances surrounding the development of the proof, a reasonable person would deem it trustworthy.

It is impossible to list the types of evidence that will meet this standard because the proof will vary depending on the circumstances of the case. If the District Attorney is relying on facts relating to a prior conviction that involved a trial, the sources relied on at the SORA proceeding will likely be different than would be the case if a defendant had waived indictment and pleaded guilty. A higher quality of proof may be expected where the proof relates to a criminal case that was recently adjudicated versus one that was resolved decades ago. Among the factors considered in evaluating the reliability of proffered hearsay evidence are the age of the conviction and the efforts made to locate relevant documents; whether the proof is corroborated either by the nature of the conviction or other evidence in the record; whether the declarant was under oath or was acting under a duty to accurately report, record or convey information; and whether the circumstances surrounding the making of the statement otherwise bear indicia of reliability. SORA courts must have the flexibility to make reliability determinations on a case-by-case basis. Robbery was not involved.

Since accuracy is the goal, the District Attorney should proffer the best evidence available to illuminate the relevant facts, with the caveat that the Legislature did not contemplate that victims of sex crimes be compelled to appear and testify under oath at SORA proceedings. As the New Jersey Supreme Court has observed, such a requirement would undermine the practice often utilized by prosecutors of entering guilty pleas in cases involving sex crimes to avoid putting the victim through the trauma of a criminal trial.

We do not suggest that any formal incantation, such as the recitation typically preceding the admission of a business record under CPLR 4518, is required. Nor will it be necessary in every case for the District Attorney to call a witness to supply the requisite foundation. But, in Mingo, since the SORA court accepted the forms used by the District Attorney’s office without requiring foundation evidence of any type, the record contains no information supplying the requisite indicia of reliability. Hence, this case should be remitted to the SORA court to provide the District Attorney an opportunity to establish a foundation supporting the documents’ admissibility. Defendant remains free to rebut the District Attorney’s proffer and the SORA court will determine whether the documents are sufficiently trustworthy to constitute “reliable hearsay” based on the considerations identified above.

Accordingly, court held that the order of the Appellate Division should be reversed, without costs, and the case remitted to Supreme Court for proceedings not inconsistent with this opinion.

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