People v. Chrisley

• Decision Date: 30 April 2021
• Docket Number: KA 19-01495,1175
• Citation: 147 N.Y.S.3d 819,193 A.D.3d 1422
• Parties: The PEOPLE of the State of New York, Respondent, v. John R. CHRISLEY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

193 A.D.3d 1422

147 N.Y.S.3d 819

The PEOPLE of the State of New York, Respondent,

v.John R. CHRISLEY, Defendant-Appellant.

1175

KA 19-01495

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: April 30, 2021

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALLYSON L. KEHL-WIERZBOWSKI OF COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (ROBERT J. SHOEMAKER OF COUNSEL), FOR RESPONDENT.

PRESENT: CARNI, J.P., LINDLEY, CURRAN, WINSLOW, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq. ). On a prior appeal, we determined that County Court had erred in assessing points for a continuing course of sexual misconduct on a theory that was not raised by the Board of Examiners of Sex Offenders (Board) or the People ( People v. Chrisley , 172 A.D.3d 1914, 1915-1916, 99 N.Y.S.3d 569 [4th Dept. 2019] ). "The Board [had] recommended no point assessment under that category, and the People [had mistakenly] recommended that points be assessed under that category on the sole ground that, as indicted, defendant had committed two acts of sexual contact against the victim" ( id. at 1915, 99 N.Y.S.3d 569 ). The court, however, properly determined that "points could not be assessed for only two acts of sexual contact inasmuch as neither of [those] incidents involved ‘an act of sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact’ " ( id. ). Relying on a third, uncharged incident, the court sua sponte assessed points under that category on the theory that defendant engaged in three or more acts of sexual contact with the victim over a period of at least two weeks (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 10 [2006] [Guidelines]).

Inasmuch as defendant was not provided notice that he would be assessed points as a result of a third uncharged incident and thus was not given a meaningful opportunity to respond, we concluded that he was denied his right to due process. After determining that defendant's remaining challenges to the risk level determination lacked merit, we reversed the order, vacated the risk level determination and remitted the matter to County Court for a new risk level determination, and a new hearing if necessary ( Chrisley , 172 A.D.3d at 1916, 99 N.Y.S.3d 569 ).

On remittal, defendant provided the court with a letter from his counselor wherein the counselor noted that, in the two years since his release, defendant had "actively engage[d]" in treatment; "routinely participate[d]" in treatment; and "ma[d]e positive changes to his life." In addition, defendant's risk level had also been recently assessed on three separate risk assessment instruments, the STATIC-99R, the STABLE-2007 and the ACUTE-2007. On each assessment, defendant had scored as a low risk. Based on his treatment of defendant and the scores on the recent assessments, the counselor opined that defendant was a "low risk for recidivism sexually, violently, and in general" and supported "the courts [sic] consideration for re-leveling of [defendant]."

At the subsequent SORA hearing, the court concluded that there was clear and convincing evidence of a third incident and assessed defendant 20 points under the category of continuing course of sexual misconduct. As a result, defendant's total risk assessment score was 110, making him a presumptive level three risk. The court, however, concluded that the information from the counselor justified a downward departure, and determined that defendant should be classified as a level two risk.

We agree with defendant that there is not clear and convincing evidence of a third incident of sexual contact. The evidence presented at the SORA hearing on that issue was the grand jury testimony of the victim's mother who stated that, on one occasion, the victim had been "fidgeting" while sitting on defendant's lap. Although defendant had told the victim to sit still, the mother removed the victim from his lap and told her to go play. Shortly thereafter, the mother observed what she thought to be a "wet spot near his privates on his pants."

It is well settled that, at a SORA hearing, the People have "the burden of proving the facts supporting the determinations sought by clear and convincing evidence" ( Correction Law § 168-n [3] ). The clear and convincing standard requires evidence that "makes it highly probable that the alleged activity actually occurred" ( People v. Warrior , 57 A.D.3d 1471, 1472, 870 N.Y.S.2d 199 [4th Dept. 2008] [internal quotation marks omitted]; see People v. Stewart , 61 A.D.3d 1059, 1060, 876 N.Y.S.2d 208 [3d Dept. 2009] ). In our view, the evidence submitted to the SORA court does not establish a high probability that sexual contact actually occurred.

" ‘Sexual contact’ means any touching of the sexual or other intimate parts of a person for the purpose of gratifying sexual desire of either party. It includes the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing, as well as the emission of ejaculate by the actor upon any part of the victim, clothed or unclothed" ( Penal Law § 130.00 [3] ). Here, unlike many other cases involving victims who sat on the respective defendants’ laps, there is no evidence that defendant otherwise touched the victim inappropriately during that incident (see People v. Scerbo , 59 A.D.3d 1066, 1067-1068, 872 N.Y.S.2d 763 [4th Dept. 2009], lv denied 12 N.Y.3d 821, 881 N.Y.S.2d 29, 908 N.E.2d 937 [2009] ; cf. People v. Scerbo , 74 A.D.3d 1730, 1733-1734, 903 N.Y.S.2d 621 [4th Dept. 2010], lv denied 15 N.Y.3d 757, 906 N.Y.S.2d 830, 933 N.E.2d 229 [2010] ; People v. Hicks , 55 A.D.3d 1138, 1140, 867 N.Y.S.2d 726 [3d Dept. 2008], lv denied 12 N.Y.3d 758, 876 N.Y.S.2d 710, 904 N.E.2d 847 [2009] ). Although it appears that something nefarious might have happened while the victim was sitting on defendant's lap, causing a wet spot, the presence of what appeared to be a wet spot on defendant's pants does not, without more, rise to the level of clear and convincing evidence of sexual contact. As a result, we remove those points from defendant's risk assessment score, resulting in a total score of 90 points. That score makes defendant a presumptive level two risk.

De...