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On 23 October 2003 the Board of Examiners of Sex Offenders (“the Board”) submitted a Risk Assessment Instrument (RAI) and…

On 23 October 2003, pursuant to the Sexual Offender Registration Act (SORA), the Board of Examiners of Sex Offenders (“the Board”) submitted a Risk Assessment Instrument (RAI) and recommended that defendant be designated as a Risk Level 2 Sexually Violent Offender upon his release from custody, based on his conviction for Attempted Sexual Abuse in the First Degree and on an assessed score of 95. Specifically, the Board assessed: 10 points for use of forcible compulsion; 25 points for sexual intercourse, deviate sexual intercourse or aggravated sexual abuse with the victim; 20 points for being either a stranger to the victim or having a relationship established for the purpose of victimizing or a professional relationship; 5 points for a criminal history with no sex crimes or felonies; 15 points for a history of drug or alcohol abuse; and, 20 points for unsatisfactory conduct while confined or supervised including sexual misconduct.

The Board compiled a Case Summary “based upon a review of the inmate’s file which includes but is not limited to the pre-sentence investigation, prior criminal history and post-offense behavior.” This summary stated, in pertinent part, that:

“While incarcerated, defendant completed a sex offender counseling program. His final evaluation indicates that he accepted responsibility for his actions and demonstrated remorse and empathy. Defendant, who admitted to abusing alcohol and to drinking on the night of the rape, did complete a substance abuse program. His disciplinary history contains a sex offense wherein during a visit with his wife and mother, defendant was observed with his hand “in between his wife’s legs, outside of clothing, rubbing her crotch vigorously.” “He also was placed in Protective Custody in May 2003 after being slashed on his face for gang activity, i.e., unauthorized organization activity.”

Defendant now questions his being designated as a Risk Level 2 Sexually Violent Offender.

According to defendant, at the risk assessment hearing, his designation is incorrect and should actually be a lower Risk Level 1 because: the Board erred in adding 25 points for his engaging in sexual intercourse, deviate sexual intercourse, or aggravated sexual abuse with the victim; because he was convicted of an attempt, he is not guilty of any of the abovementioned overt acts; he should have received zero points under the factor “sexual contact with victim,” which would bring his total score to 70, rather than the 95 presumptive points assigned him.

The court decided as follows:

First, as provided for by SORA, a Sexually Violent Offender is any sex offender convicted of a sexually violent offense, which includes a conviction for Attempted Sexual Abuse in the First Degree. Obviously, since defendant was convicted of the same crime, he has properly been categorized as a Sexually Violent Offender.

Second, defendant was properly classified as a level-two sex offender. This classification was supported by clear and convincing evidence, based on the facts contained in the Board’s Case Summary and Risk Assessment Instrument.

In People v. Victor R., Sup. Ct. Bronx Cty. 2000, the defendant was initially charged with several sex offenses against multiple victims. He later pled guilty to one count of attempted second degree sodomy against only one victim. At his risk assessment hearing, the use of the Pre-Sentence Report and Grand Jury minutes was challenged by the defendant. In allowing the use of these items, the court held:

“Grand Jury testimony is undeniably probative, and has historically been admitted in a variety of proceedings, under appropriate circumstances, including at trial where the standard for the admission of such testimony is clearly much greater. xxx In the context of SORA hearings, the use of Grand Jury minutes is amply supported by controlling authority. The statute itself directs that the court “may consider reliable hearsay evidence.” xxx Similarly, a felony complaint and the supporting deposition of the complainant, which are likewise not subject to cross-examination, have been found to be reliable and admissible hearsay in SORA hearings. xxx The role of the court in cases of this type is to weigh the reliability and probative value of the hearsay evidence, and to admit that evidence provided it is established to be reliable. Accordingly, the admission of Grand Jury testimony to establish the conduct surrounding the defendant’s conviction is consistent with the explicit provisions of SORA, as well as basic principles of justice. xxx When no cogent evidence is offered to cast doubt on the Grand Jury testimony, and when all of the attendant evidence and indicia circumstantially support the reliability of that evidence, hearsay evidence in the form of Grand Jury testimony constitutes competent and probative evidence which will support a determination of the risk level posed by the sexual offender under the statute. xxx Defendant has not demonstrated that any factual matter contained in the report of the Department of Probation was misrepresented, nor does defendant present any evidence that the report is otherwise inaccurate or unreliable. The court finds that the probation report is “reliable” hearsay evidence, and was consequently admissible.”

In that case, the court also noted that where a defendant in his plea has admitted the commission of the crime, SORA prohibits him from relitigating his guilt as `facts previously proven at trial or elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence.’

In People v. Saleemi, Sup. Ct. Queens Cty. 2000, the defendant was initially indicted for first-degree rape, second-degree kidnaping, first-degree sexual abuse, second-degree assault, petit larceny and fourth degree weapons possession. He later pled guilty to first-degree sexual abuse. In classifying him as a risk level two, the court assessed points for being armed with a dangerous instrument and engaging in sexual intercourse with the victim based upon the victim’s Grand Jury testimony, defendant’s statements to the police and his plea allocution. The court held:

“In determining the risk factors here, this court is not limited to the single charge of sexual abuse in the first degree to which defendant pleaded guilty. The sworn Grand Jury xxx testimony of the victim xxx and defendant’s statement to the police, demonstrate by clear and convincing evidence that defendant xxx possessed a knife and that he did have forcible sexual intercourse with the victim. The plea allocution corroborates the victim’s prior testimony that defendant forcibly had sexual contact with her.”

In Matter of Youngs v. Division of Probation and Correction Alternatives, Cty. Ct. Yates Cty. 1997, a defendant claimed that he was incorrectly assessed points for forcible compulsion, sexual intercourse and multiple acts of sexual conduct since he was convicted of only one count of statutory rape and acquitted on the other count. However, by reviewing the victim impact statement, sworn statements of the victims, and probation report, the court noted that there was clear and convincing evidence that the defendant did engage in forcible compulsion even though he was not indicted for such an act. Specifically, the court held:

“At first blush the defendant’s arguments concerning this factor are compelling. After all, if the jury had acquitted on both counts, the defendant would not be subject to article 6-C at all, despite the sworn statements by the victim concerning multiple incidents of sexual intercourse. But, since the Risk Assessment Guidelines and Commentary allowed the Board to review the record despite the acquittal, this court cannot say that the Board’s determination to assess points for this factor was arbitrary and capricious or an abuse of discretion.”

Third, defendant’s reliance on the case of Maldin was misplaced. In that case, the court, as here, relied upon the victim’s statements to police as contained in the Pre-Sentence Report and not just the final charge. Based on these statements, the defendant engaged in multiple acts of sexual misconduct with the victim, but only attempted to engage in deviate sexual intercourse. The Third Department ruled that the guidelines were misapplied by adding points for engaging in deviate sexual intercourse since the “deviate sexual intercourse contemplates commission of specific sexual acts rather than attempted commission of those acts as occurred here.” By contrast, here, when reviewing the victim’s statements, and not just the final charge, it is clear that there were completed acts of sexual intercourse by defendant and that he also acted in concert in allowing deviate sexual intercourse to be completed against the victim. Thus, his argument as to the 25 points being misappropriated to him must fail.

In conclusion, by virtue of his conviction, defendant is a Risk Level 2 Sexually Violent Offender. Based on the felony complaint, the Grand Jury testimony, the victim’s statement and the Pre-sentence Report, they all establish by clear and convincing evidence that defendant used forcible compulsion (10 points), had sexual intercourse with the victim and acted in concert with co-defendant JS in having deviate sexual intercourse with her (25 points), and that the defendant and victim were strangers (20 points). Besides, defendant acknowledged in his sworn guilty plea and statement in the Pre-Sentence Report that he engaged in sexual intercourse with the victim against her will. The fact that defendant pled to a lesser included offense is of no consequence. While defendant claimed that he and the victim knew each other, the self-serving statement cannot overcome the clear and convincing evidence that he and the victim were strangers, as established. Moreover, defendant’s rap sheet showed that he has a prior misdemeanor conviction (5 points), which he does not contest; and, based on the Case Summary, defendant admitted to abusing alcohol on the night of the incident and to completing a substance abuse program for his addiction (15 points), defendant had disciplinary problems while in custody, including an act of sexual misconduct (20 points), specifically, “during a visit with his wife and mother, he was observed with his hand `in between his wife’s legs, outside of clothing, rubbing her crotch vigorously’, and the fact that he also was placed in Protective Custody in May 2003 after being slashed on his face for gang activity. Evidently, defendant was properly assessed a total of 95 points and classified as a Risk Level 2.

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