People v. Britton
| Decision Date | 26 April 2018 |
| Docket Number | No. 86 SSM 42,86 SSM 42 |
| Citation | 31 N.Y.3d 1019,99 N.E.3d 852,75 N.Y.S.3d 459 (Mem) |
| Parties | The PEOPLE of the State of New York, Respondent, v. Quinn BRITTON, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Paul Skip Laisure, Appellate Advocates, New York City (Denise A. Corsi of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn (Julian Joiris of counsel), for respondent.
The order of the Appellate Division should be affirmed, without costs.
The record supports the affirmed finding that defendant engaged in sexual intercourse, deviate sexual intercourse, or aggravated sexual abuse, warranting the imposition of 25 points under risk factor 2 in determining defendant's risk level under the Sex Offender Registration Act. Contrary to defendant's argument, his acquittal of charges at his criminal trial relating to such conduct, does not foreclose the hearing court from finding, by clear and convincing evidence, that he engaged in such acts (see Reed v. State of New York, 78 N.Y.2d 1, 7–8, 571 N.Y.S.2d 195, 574 N.E.2d 433 [1991] ; see e.g. People v. Headley, 147 A.D.3d 988, 988, 47 N.Y.S.3d 385 [2d Dept. 2017], lv denied, 29 N.Y.3d 916, 2017 WL 3908121 [2017] ; People v. Vasquez, 49 A.D.3d 1282, 1284, 853 N.Y.S.2d 767 [4th Dept. 2008] ).
The sole issue in this appeal is whether the People satisfied their burden to establish by clear and convincing evidence that the conduct of which defendant was acquitted had in fact occurred. I conclude the People failed to meet this heavy burden because the jury rejected the evidence, rendering it unreliable for purposes of the Sex Offender Registration Act (Correction Law art 6-C [SORA] ).
Defendant's jury trial turned on competing narratives of the complainant and the defendant as the People had no physical evidence or eyewitnesses to the crimes charged. The jury acquitted defendant of first-degree rape ( Penal Law § 130.35[4] ) and two counts of criminal sexual act in the first degree ( Penal Law § 130.50[4] ), all felony charges, and convicted of one count of second-degree sexual abuse ( Penal Law § 130.60[2] ), a misdemeanor. Despite the acquittal of the felony charges, the SORA court assessed defendant points for having committed the specific conduct on which these charges were based. On the particular facts of this case, in which the only evidence of the conduct for which defendant was assessed these points was rejected by the jury, the SORA court erred in finding clear and convincing evidence of the alleged sexual contact. Therefore, I would reverse the order adjudicating defendant a risk level two offender, and dissent from the majority's contrary determination on this appeal.
At defendant's trial, the complainant, defendant's 13–year–old niece, A.B., testified that the incident occurred when she was 11 years old and visiting her grandmother for Thanksgiving. The grandmother lived with her son, defendant, and A.B. had visited them on prior occasions. Sometime during the evening, A.B. was in the living room with her grandmother, who had fallen asleep, when defendant invited A.B. into his room.
Defendant closed the bedroom door behind her and told her to remove her clothing and lie down on the bed. Defendant then touched her breasts, stomach, and vagina with his hands and mouth, put on a condom, had penetrative sex with her, and then told her to perform oral sex on him.
A.B.'s older brother testified that in December of this same year, the complainant came to him upset, and informed him that defendant had told her to go into his bedroom, told her to take off her pants, performed oral sex on her, made her perform oral sex on him, and that defendant attempted to have penetrative sex with her but could not because his penis "wouldn't fit."
A police detective testified that after defendant was arrested, defendant waived his Miranda rights and made various statements regarding his family and A.B.'s allegations. The detective testified that after defendant provided a detailed history of conflicts he had with A.B.'s mother, defendant stated that on Thanksgiving A.B. was visiting and he invited her into his room. He began talking to her about her interactions with boys at school, and then hugged her, kissed her on her neck, stomach, and vagina, and noted that the complainant was lubricated. These statements were not made in writing or videotaped.
The People also presented testimony from a psychologist about the circumstances that may lead a child victim of sexual abuse to delay disclosure, as well as a physician who testified that complainants of sexual abuse frequently do not exhibit physical signs of the abuse. In fact, there was no physical evidence that connected defendant to the charged crimes.
A.B.'s grandmother testified on defendant's behalf that defendant had spent most of Thanksgiving in his bedroom because he did not feel well. She testified that A.B. was in the living room with her the entire night watching television, that she never heard defendant call A.B. to his room or A.B. enter his room, and she did not notice anything out of the ordinary that night or the following morning when they ate breakfast together. Defendant testified, denying A.B.'s allegations in their entirety, and claiming that he never confessed to the officer, although the officer tried to intimidate him into admitting the allegations.
The court submitted four counts to the jury. The first-degree rape count charged defendant with sexual intercourse with the complainant. In its charge to the jury, the court defined "sexual intercourse" as "any penetration, however slight, of the penis into the vaginal opening." The first-degree criminal sexual act counts charged two separate acts of oral sex, one for mouth to penis contact and the other mouth to vagina contact. The count for second-degree sexual abuse charged defendant with oral contact with the complainant's breasts.
Over three days of jury deliberations the jury sent three separate notes to the judge announcing it was deadlocked. After the first deadlock note, the court issued a "light" Allen charge.1 The second note announced: "We, the jury, are hopelessly deadlocked on the verdict and we will not reach a verdict." In response, the court gave a full Allen charge. After the third note defense counsel moved for a mistrial. The trial court responded: Nevertheless, before the court responded to the note, the jury returned a verdict acquitting defendant of first-degree rape and the two counts of first-degree criminal sexual act for oral sexual conduct, and convicting him of second-degree sexual abuse.
At the SORA hearing before the same judge who presided over defendant's trial, the court considered A.B.'s grand jury testimony, court file and a Risk Assessment Instrument filed by the District Attorney, recommending an assessment of 85 points, including, as relevant here, 25 points under risk factor two for sexual intercourse or oral sexual conduct, despite defendant's acquittal for such conduct (see Board of Examiners of Sex Offenders, Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 9 [2006].2 Over defendant's objection, the court assessed defendant these 25 points based on the complainant's grand jury and trial testimony. Defendant's total score, inclusive of the 25 points, was 85, placing him at a presumptive risk level two to reoffend, and the court adjudicated him as such. Absent the addition of the challenged 15 points, defendant would have fallen within the lower presumptive risk level one.3
On appeal, defendant argued that the SORA court erroneously assessed 25 points under risk factor two, despite the jury having acquitted him of the crimes related to the penetrative and oral sex contact, and that there was no credible evidence supporting the court's point assessment. The People responded that the acquittal did not foreclose the SORA court's finding that there was clear and convincing evidence supporting defendant's risk level two designation. The Appellate Division affirmed, holding that "even though the defendant was acquitted [of the three counts], the People established by clear and convincing evidence, including the trial testimony and the complainant's grand jury testimony, that the defendant engaged in sexual intercourse, deviate intercourse, or aggravated sexual abuse with the [complainant]" ( People v. Britton, 148 A.D.3d 1064, 1064, 49 N.Y.S.3d 742 [2d Dept. 2017] ). We granted defendant leave to appeal ( People v. Britton, 29 N.Y.3d 914, 63 N.Y.S.3d 4, 85 N.E.3d 99 [2017] ).4 Contrary to the majority, I would now reverse the risk designation of the courts below as improperly based on unreliable evidence that defendant had committed the acquitted conduct.
The purpose underlying SORA is to protect the public from sex offenders, and "[g]iven the significance of the mission, an accurate determination of the risk a sex offender poses to the public is the paramount concern" ( People v. Mingo, 12 N.Y.3d 563, 574, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ). The offender's risk level classification is determined at a SORA hearing, where the offender and the People each present evidence to the court in support of their positions as to point assessment and risk level determination ( Correction Law § 168–n ). At the hearing, the People "bear the burden of proving the facts supporting the determinations sought by clear and convincing evidence" ( Correction Law § 168–n [3 ] ). The court ...
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