People v Green

[*1] People v Green 2004 NY Slip Op 51608(U) Decided on December 16, 2004 Supreme Court, Monroe County Fisher, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 16, 2004
Supreme Court, Monroe County

The People of the State of New York

against

Robert Green, Defendant.



91-0103V

Kenneth R. Fisher, J.

On Ind. #

94-W0657, the above-named defendant was found guilty by a plea of guilty of Sexual Abuse in The First Degree, in County Court, Monroe County, and was sentenced on November 16, 1994, to 3 ½ - 7 years. On Ind. #

91-0103, defendant was found guilty by plea of guilty of Sexual Abuse in the First Degree, in Monroe County Court, and was sentenced on December 21, 1992, to 5 years probation. Defendant registered under the New York State Sex Offender Registration Act [SORA]. Defendant was classified as a risk level #

3 sex offender pursuant to SORA by Monroe County Court Judge Patricia D. Marks on November 6, 1998.

The defendant initially failed to appear before this court for a judicial redetermination of the appropriate SORA classification under Article 6-C of the Correction Law, under a Consent Decree issued in Doe v. Pataki, 3 F. Supp. 2d 456, 471-472 & n.3 (S.D.NY 1998), after notice thereof was duly sent to him. For the reasons detailed by the court on the record at the hearing, defendant's absence was found to be deliberate. People v. Brooks, 308 AD2d 99, 106 (2d Dept. 2003). Thereafter, defendant was located, the hearing reopened, and further argument had with defendant present, represented by counsel. Evidence was received at the hearing on December 6, 2004, and December 14, 2004, and the court has reviewed the same, including a copy of the pre-sentence reports from the Monroe County Probation Department the last of which was dated August 1, 1995 (Exh. #

3 at the re-determination hearing). Certified copies of the entire probation department file, including prior PSI's and VOP Summaries, were delivered to the court, made a part of the file, and provided to the parties. Discovery was afforded to the defendant pursuant to a scheduling order issued September 29, 2004, at least 30 days prior to the hearing or in such time that defense counsel deems satisfactory. The court heard oral argument by the People and by defendant's counsel.

The court makes the following findings of fact and conclusions of law in reaching its re-determination. The evidence presented at the hearing, specifically referenced below, is found [*2]to be "relevant to the determination" and "reliable hearsay," as those terms are used in Correction Law §168-n (3). Compare People v Brown, 7 AD3d 831, 832-33 (3d Dept. 2004), with, People v Wroten, 286 AD2d 189, 199 (4th Dept. 2001).

RISK ASSESSMENT

FINDINGS OF FACT

The court finds as follows:

We begin with defendant's prior conviction in 1977 for Sexual Abuse in The First Degree, in Monroe County Court (Ind.

#

76-1061). Accordingly, there is a presumptive override providing for a Level 3 classification by reason of the prior felony sex crime. People v. Boam, __ AD2d __, 782 NYS2d 204 {11 AD3d 1011} (4th Dept. 2004). "It is then the duty of the sentencing court to 'review any victim's statement and any relevant materials and evidence submitted by the [defendant] and the district attorney and the recommendation and any materials submitted by the [B]oard' and to make a final determination of the defendant's risk level based on clear and convincing evidence thereof (§168-n[3])." People v. Brown, 302 AD2d 919, 920 (4th Dept. 2003)(emphasis supplied). On the operation of the presumptive override at the hearing, see People v. Brown, 302 AD2d at 920-21 (presumptive override does not create a "mandatory presumption" without regard to analysis of the evidence presented at the hearing to determine whether "clear and convincing evidence related to the statutory factors" supports a particular risk level classification); People v. Barnes, ___ Misc 3d ___ (Sup. Ct. Monroe County, November 24, 2004)(same). For the reasons stated below, the proposed Level 3 classification is supported by clear and convincing evidence.

Defendant does not dispute the proposed 5 point assessment in Category #

2 for contact over clothing, the proposed 30 point assessment in Category #

5 for the tender age of the victim, and the proposed 15 point assessment in Category #

11 for the fact of alcohol or drug abuse. He does dispute the proposed 30 point assessment in Category #

3 for the fact of three or more victims, the proposed 20 point assessment in Category #

7 for defendant's relationship with the victims, and the proposed 10 point assessment in Category #

12 for not having accepted responsibility.

Category #

3 Assessment:

This redetermination proceeding concerns two convictions. The first, Ind. #

91-0103, was a conviction by plea to Count 8 of a nine count indictment charging defendant with the sexual molestation of three children. The plea was in satisfaction of all counts of the indictment. The fact that defendant's plea was intended to satisfy all the charges concerning these three victims,[FN1] together with the cataloging of the crimes in the PSI, in the sworn witness [*3]statements, and defendant's oral and written statements to the police variously admitting culpability for sexual misconduct of the three children, contained in the People's proffer, Exh. #

1, are appropriately relied on and constitute clear and convincing evidence, especially in view of defendant's failure to allege, by proffer or otherwise, any different version of the facts. People v. Barnes, ___ Misc 3d at ___ n.2.

Defendant presents a Memorandum of Law disputing this approach to the consideration of evidence at the hearing. He contends that the Barnes formula (1) is contrary to the Correction Law §168-n(3), which allocates the burden of proof to the People by clear and convincing evidence, (2) violates the due process clause in that it shifts the burden of proof to the defendant when the People's proof falls short of clear and convincing evidence that a proposed classification is warranted, and (3) is a violation of a SORA defendant's right to counsel, because any argument the defense raises "that the People have failed to meet their burden is merely [by which defendant means 'always'] a 'conclusory challenge' not warranting consideration by the court, i.e., that Barnes eliminates legal argumentation about the clarity and convincing power of the People's proof." Defendant's Memorandum of Law (Exh. #

5)(bracketed material supplied). The core of defendant's argument is that Barnes "treats any facts offered by the People as conclusively proven in the absence of . . . [a factual proffer by the defendant at variance with the facts proffered by the People at the hearing]," and that Barnes imposes a "requirement that the offender present evidence [to the contrary] or have the People's [proffered] facts deemed conclusively established." Id. (bracketed material supplied).

Each of these contentions is without merit, and they wholly misinterpret Barnes. As made clear in Barnes, __ Misc 3d at __ n.2, SORA hearings of this sort are not contemplated "'to resemble mini-trials.'" (quoting United States v. Martir, 782 F.2d 1141, 1144-45 (2d Cir. 1986)); see also, Doe v. Pataki, 3 F. Supp. 2d at 471 n.3, but the judge is nevertheless obligated to scrutinize the reliability of the evidence presented and to selectively insist on more particularized proof when reliability of the proffered proof is sufficiently questioned. United States v. Martir, 782 F.2d at 1147; United States v. Acevedo-Ramos, 755 F.2d 203, 207 (1st Cir. 1985)(Breyer, J.). When a defendant presents a cogent argument that the People's proof on a particular point should not be considered reliable, or if reliable would not by itself be clear and convincing proof on the point in question, the court may in its discretion, demand more particularized proof on the question from the People, or simply determine, if defendant's argument on the point has merit, that the People's evidence fails to meet their burden of proof. That is the point of People v. Brown, 7 AD3d 831 (3d Dept. 2004), discussed in Barnes, __ Misc 3d at __ n.2, in which the court rejected a dubious and unsourced out of state report about defendant's conduct that had no [*4]indicia of reliability, and was otherwise unsupported in the record.

By contrast, in this case, the People's proof of the number of victims in #

91-0103 is fully supported by (a) the fact that the plea to one count was taken "in satisfaction" of the other counts in the indictment, see, supra n.1, (b) the sworn child witness statements included in the People's proffer, (c) evidence of defendant's oral and written statements to the police admitting, with various degrees of assurance and genuineness, that he molested three children (defendant told Inv. Tarnow "that whenever he gets around little kids this type of thing happens" and that "he probably did it"), and (d) the PSI and Board Summary which made reference to the three victims. In these circumstances, a challenge to the People's proof on the point which alleges merely that it is not reliable (or clear and convincing), without any accompanying evidence (or argument even) that the proof is indeed unreliable, cannot overcome the manifest reliability of such proof that there were, in fact, three victims.

It isn't, as defendant would have it, that the burden is shifted when defendant failed to offer contrary proof on the point; rather the determination by the court in such a case is that defendant's contention that the proof is unreliable (or fails to meet the clear and convincing threshold) is unpersuasive.[FN2] In a case like Brown, in which the People's proof was manifestly dubious, the naked challenge (i.e., without any proffer of varying or contrary facts) should succeed under the Barnes formula; the fact that defendant simply responds at the hearing by pointing out the flaws in the People's "evidence" will not mean that the court must "effectively assum[e] that the People's proof is clear and convincing." Memorandum of Law (not paginated). But when the People's proof at the hearing has the traditional hallmarks of reliability, such as when, as here, that proof is based on defendant's own statements to the authorities and the victim's sworn statements to the police, a Grand Jury probable cause finding with respect to each victim which has survived court inspection under C.P.L. §210.20, and a plea to one count [*5]satisfying each of the other counts of the indictment, a naked challenge has less viability. In the face of such convincing proof, it does no violence to the statutory burden of proof, defendant's due process rights, or his right to counsel (and to have counsel present legal argument at the hearing), when a court observes that defendant offered nothing of evidentiary value tending to call into question the reliability of the People's proof (as the courts did in People v. Carswell, 8 AD2d 1073 [4th Dept. 2004] and People v. Wroten, 286 AD2d at 199), and to determine that the conclusory challenge made has no merit, and that the People have, therefore, carried their burden of proof on the point. The determination thus made in such a case involves no burden shifting, but rather is that the People's proof has the appropriate indicia of reliability, that defendant's challenge to it is wholly wanting, and that ultimately the People have proved by clear and convincing evidence that defendant, to refer to this case, victimized three victims in the #

91-0103 matter.

This redetermination proceeding also concerns Ind. #

94-W0657, wherein defendant pled guilty to Sexual Abuse in the First Degree concerning a victim, T. L., under age 11. Accordingly, there are four victims for purposes of this redetermination proceeding. As the SORA Guidelines commentary makes clear, if defendant is convicted on two indictments that are the subject of a SORA determination proceeding involving two episodes, "both indictments should be considered in scoring the section," i.e., "[i]f one indictment involved one victim and the other involved two victims and there is clear and convincing evidence that all three were abused, the offender should receive 30 points (three or more victims) in Category #

3." SORA Guidelines (1997 ed) at p. 5, ¶8 (General Principles). Accordingly, the proposed assessment in Category #

3 for the fact of three or more victims is supported by clear and convincing evidence.

Category #

7 Assessment:

Defendant disputes the proposed assessment of 20 points in Category #

7 for his relationship to the victims. The People's proffer of evidence fails to support the proposed assessment. In the #

91-0103 matter, the Board Summary (Exh. #

4), and the PSI clearly show that the protagonists were well known to each other, as children of friends defendant was visiting at the time of the abuse. There is no evidence that the relationships were cultivated for the purpose of abuse. In the #

94-W0657 matter, the People offered nothing on the issue at the hearing, nor did they respond to the Boards's repeated inquiries to the district attorney's office prior to preparation of the Summary (dated 10-5-98). Accordingly, there is no basis to impose any points in Category #

7 by reason of the relationship defendant had with any of his victims.

Category #

12 Assessment:

Defendant also disputes the proposed 10 point assessment in Category #

12 for not having accepted responsibility. He pled guilty to each of the subject offenses. However, in #

91-0103 he told the probation officer preparing the PSI that "he never did anything sexually [*6]inappropriate" and that "the kids made it up." He further stated that "he regrets pleading guilty to the charge and does not feel he has done anything wrong." PSI (11-23-92), at pp.3-4. These are comments which the SORA Guidelines (1997 ed.), at p.15(Factor #

12 commentary) insist are the hallmarks of having not accepted responsibility. It appears also from the Board Summary (Exh. #

4) that defendant "quit" sex offender treatment programs, and therefore could have been assessed another 5 points if the district attorney had only requested it. See People v. S. G., 4 Misc 3d 563, 566-67 (Sup. Ct. NY Co. 2004); Correction Law §168-n(3). The point is made only to provide some further basis to conclude that the presumptive override has not been rebutted. The proposed 10 point assessment in Category #

12 is supported by clear and convincing evidence.

Override Factors:

Defendant was subsequently convicted in 1995 of Attempted Sexual Abuse in The First Degree (Ind. #

95-0210), and Failing to Register as a Sex Offender in 2004. This subsequent history provides ample reason for an upward departure if one was necessary. SORA Guidelines (1997 ed.) at 13-14 (Factor #

9 commentary)(subsequent offenses are not considered in Category #

12 and provide "the basis for an upward departure if it provides reason to believe that the offender poses an increased risk to public safety"). The existence of such offenses, particularly of a sexual nature and of failing to register under SORA, also provides compelling evidence tending to show that defendant has failed to rebut the presumptive override, and that the presumption should be considered, together with this and the other evidence addressed to the statutory factors, to support the determination below.

CONCLUSIONS OF LAW

Evidence as to the foregoing is found to be clear and convincing, and the court has carefully reviewed the record concerning the undisputed proposed point assessments, and finds that they are supported by clear and convincing evidence. The defendant presents a total risk factor score of 90 points even without the presumptive override, which defendant has failed to rebut in any fashion. People v. Barnes, ___ Misc 3d at ___ n 1). The defendant is hereby designated a Level 3 Offender, pursuant to Article 6-C of the Correction Law. Correction Law §168-l(6)(c)("risk of repeat offense is high and there exists a threat to the public safety"). Transcript of hearing on December 6 and 14, 2004, together with the court's Risk Assessment Instrument, hereby made a part hereof.

SO ORDERED. ______________________

Kenneth R. Fisher

Justice Supreme Court

DATED:December 16, 2004

Rochester, New York Footnotes

Footnote 1: C.P.L. § 220.30(3)(a)(i). See People v. Cunningham, 195 Misc2d 295 (Dist.Ct. Nassau Co. 2002); People v. Schleyer, 192 Misc2d 113 (Roch. City Ct. 2002), both holding that charges "satisfied" by a plea of guilty to another charge, whether contained in the same accusatory instrument or not, C.P.L. § 220.30(3)(a)(i)-(ii), are not terminated in favor of the accused, which precisely explains why they may be inquired into on cross-examination of the defendant in a subsequent proceeding in which he or she is a witness. People v. Torra, 309 AD2d 1074 1076 (3d Dept 2003)(collecting cases); People v. Flowers, 273 AD2d 938 (4th Dept. 2000). Cf., SORA Guidelines (1997 ed.), at p.6 n.6 (similar treatment for YO adjudication).

Footnote 2: Distinction should be made between the limited burden of production visited on a defendant faced with a presumptive override, which is discussed in Barnes, __ Misc 3d at __ n.1, and is not here in question, and the effect of a conclusory challenge to the People's proffer of putatively reliable and clear and convincing facts addressed to the statutory and Guidelines factors, discussed in Barnes, __ Misc 3d at __ n.2, the latter of which is the situation now facing the court. Rebutting the presumption has to do with producing something tending to show that defendant will not re-offend. Offering nothing except legal or other argument in response to the People's proffer of fact on a particular point simply calls into question whether the court should credit the proffered proof as reliable, and, if reliable, clear and convincing. Contrary to defendant's contention in his memorandum of law, there is no burden of production imposed on a defendant in such circumstances; only a burden on the court to determine the merits of defendant's argument, and ultimately to determine the reliability of the People's proof in light of that argument, and whether it constitutes clear and convincing proof on the point in question.