People v. Green, 2004 NY Slip Op 51608(U) (NY 12/16/2004)
| Decision Date | 16 December 2004 |
| Docket Number | 91-0103V. |
| Citation | 2004 NY Slip Op 51608(U) |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK v. ROBERT GREEN, Defendant. |
| Court | New York Court of Appeals Court of Appeals |
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 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).
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 (); 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,1 together with the cataloging of the crimes in the PSI, in the sworn witness 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 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.2 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...
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