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Defendant Acquitted of Sex Crime Yet SORA Designation is Affected


People v. B.

2018 NY Slip Op. 02830

April 26, 2018

A defendant engaged in various sex acts, including sexual intercourse and aggravated sexual abuse. He was acquitted for these crimes. The defendant received 25 points for these acts and a designation as a level 2 sex offender. His acquittal at this trial doesn’t prevent the court from finding that he engaged in these acts (Reed v NY 782d 1, 7-8[1991], People v. Vazquez 49 AD3d 1282 [4th Dept. 2008].

In the dissenting opinion, the issue on appeal is if the prosecution presented adequate evidence that the criminal acts had occurred. The defendant was acquitted for a violation of Penal Law 130.35[4], (first-degree rape). He was convicted of a violation of Penal Law130.60[2] (2nd-degree sexual abuse), which is a misdemeanor. The jury erred in finding sufficient evidence of the sexual offenses. The order should be reversed. The defendant was classified as a level 2 sex offender.

The complainant, in this case, was AB, a 13-year-old girl, the defendant’s niece. She alleged the accident happened when she was 11 years old, while at her grandmother’s house on Thanksgiving.

AB’s older brother testified about the incident and added that AB had told him of a prior sexual encounter with the defendant, which involved touching, but not intercourse.

The defendant was arrested and waived his Miranda rights. He admitted to a sexual encounter with AB but stated that it did not include penetration.

The grandmother also testified and stated that nothing unusual happened in the house that night and that the defendant was staying in a bedroom laying down because he didn’t feel well.

The jury was deadlocked and eventually declared a mistrial. The defendant was acquitted of the charged.

At a subsequent SORA hearing, the risk assessment was put at 85, 25 of those points were for the crimes he allegedly committed against AB. This was despite his acquittal. Because of the additional 25 points, he was now considered a level 2 sex offender.

The defendant argued at appeal that because he was acquitted at trial, it was unfair to be assessed extra points in his SORA trial for a crime he didn’t commit. The appellate court affirmed, citing People v. Britton 148 AD3d 1064 [2 Dept. 2017].

This hearing finds that the previous determination should be reversed. The purpose of SORA designations are to protect the public from sex offenders. At the SORA hearing, the People bear the burden of proving the facts by clear and convincing evidence. Unreliable evidence cannot be allowed to serve as a basis for a SORA designation.

The people argue that an acquittal is not the same as innocence. It is also of no consequence because the SORA court uses a lower standard to prove their cases. There may be instances where there is clear and convincing evidence of sexual crimes notwithstanding an acquittal, but this is not the case here.

The clear and convincing evidence requirement is exacting (Gillotti 23 NY3d 863). Here, where the jury had serious doubts as to whether these crimes occurred, the court erred in considering the child’s testimony as clear and convincing evidence sufficient to merit a SORA designation.

If you have been accused of a crime, it is important to seek legal counsel without delay. Contact the Law Offices of Stephen Bilkis and Associates for a free consultation at 1-800-NYNYLAW.

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