People v. Wells

• Decision Date: 20 April 2016
• Docket Number: 2013-04962.
• Citation: 2016 N.Y. Slip Op. 02978,30 N.Y.S.3d 198,138 A.D.3d 947
• Parties: PEOPLE of State of New York, respondent, v. Donnie WELLS, appellant.
• Court: New York Supreme Court — Appellate Division

138 A.D.3d 947
30 N.Y.S.3d 198
2016 N.Y. Slip Op. 02978

PEOPLE of State of New York, respondent,
v.
Donnie WELLS, appellant.

2013-04962.

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

April 20, 2016.

30 N.Y.S.3d 199

Lynn W.L. Fahey, New York, N.Y. (Joshua M. Levine of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Laura T. Ross, and Christine DiSalvo of counsel), for respondent.

REINALDO E. RIVERA, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, and COLLEEN D. DUFFY, JJ.

138 A.D.3d 947

Appeal by the defendant from an order of the Supreme Court, Queens County (Margulis, J.), dated May 2, 2013, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is affirmed, without costs or disbursements.

In May 1998, the defendant invited his then 17–year–old biological daughter (hereinafter the victim) to visit him at his apartment in Queens County. According to the victim, while she was asleep, the defendant removed her pajama shorts and underwear, and pushed her pajama top up so as to expose her breasts. The victim awoke to find the defendant on top of her, kissing her breasts. Thereafter, the defendant continued to kiss the victim's breasts, placed his mouth on her vagina, and inserted his penis inside her vagina. He told the victim to “close [her] eyes and think about something else” while he engaged in sexual intercourse with her, until finally ejaculating on her leg.

For these acts, the defendant was charged, under Queens County Indictment No. 2500/98, with sexual abuse in the first degree (Penal Law § 130.65 [2] ), sexual abuse in the third degree (Penal Law § 130.55 ), incest in the third degree (Penal Law § 255.25 ), and sexual misconduct (two counts) (Penal Law § 130.20 [1 ], [2] ).

Following a nonjury trial, by judgment rendered June 7,

138 A.D.3d 948

2000, the defendant was convicted of sexual abuse in the third degree, incest in the third degree, and sexual misconduct (two counts). He was acquitted

30 N.Y.S.3d 200

on the count of sexual abuse in the first degree.

Upon the defendant's appeal from the judgment of conviction, this Court affirmed the judgment (see People v. Wells, 289 A.D.2d 599, 735 N.Y.S.2d 815 ). The Court of Appeals denied the defendant's motion for leave to appeal (see People v. Wells, 98 N.Y.2d 641, 744 N.Y.S.2d 771, 771 N.E.2d 844 ). At the time he committed the instant offenses, the defendant was under parole supervision based upon his conviction of various crimes unrelated to the instant matter. Those crimes included murder in the second degree, for which the defendant was sentenced to an indeterminate term of imprisonment of 15 years to life.

In a case summary and risk assessment instrument (hereinafter RAI) dated March 7, 2013, completed by the Board of Examiners of Sex Offenders (hereinafter the Board) pursuant to the Sex Offender Registration Act (Correction Law article 6–C [hereinafter SORA] ), the Board assessed the defendant a total of 85 points, which presumptively placed the defendant in a risk level two category. As particularly relevant to the instant appeal, the defendant was assessed 20 points under risk factor six. Specifically, in the case summary, the Board explained that the basis for the assessment of those points was that the victim was “physically helpless as the abuse began because she was asleep.”

Prior to the SORA hearing, the People referred the Supreme Court (hereinafter the SORA Court) to the victim's grand jury testimony, and argued that this testimony established, by clear and convincing evidence, that the victim was sleeping when the abuse began. Defense counsel submitted an affirmation dated April 8, 2013, in opposition to the assessment of points under risk factor six or, in the alternative, for a downward departure. Defense counsel attached to his affirmation, inter alia, the case summary and the RAI. In his affirmation, counsel recounted the victim's trial testimony that she awoke from sleep to find the defendant engaging in sexual activity with her. Counsel then argued that the verdict acquitting the defendant of sexual abuse in the first degree necessarily indicated that the trial court had not credited the victim's claim that she awakened in the middle of being sexually abused. Thus, counsel maintained that there was no reliable basis upon which to find that the victim was asleep at the beginning of the incident and assess points for physical helplessness.

A SORA hearing was subsequently conducted on May 2,

138 A.D.3d 949

2013. At the commencement of the hearing, defense counsel noted that, although the defendant's conviction occurred after a trial, the People were relying on grand jury minutes which had not been provided to the SORA Court or the defendant. Counsel added, “since the People have not provided me with the documents on which they are relying in this case, specifically the Grand Jury minutes, they should not be heard to argue as to their contents.” In response, the prosecutor stated that the People did not have the trial testimony. The prosecutor did, however, provide the SORA Court and defense counsel with the “complaint report” and the indictment. Further, the prosecutor submitted the victim's grand jury minutes for the court's in camera review. The court offered the defendant an adjournment so that he could respond to “anything” the prosecutor had filed. The defendant, however, declined the court's offer of an adjournment.

The prosecutor argued that, at the trial, physical helplessness was “not charged in this case”; however, “the facts support[ed] a theory of physical helplessness for the sexual abuse.” Defense counsel countered

30 N.Y.S.3d 201

that, at the trial, physical helplessness was, in fact, charged with regard to the sexual abuse in the first degree count, of which the defendant was acquitted. Defense counsel then reiterated that the trial court had “rejected” the victim's credibility as to her testimony that she was asleep when the abuse began.

In an order dated May 2, 2013, the SORA Court designated the defendant a level two sex offender. In its findings of fact, the court stated that it had reviewed the Board's RAI and the case summary. The court stated that it did “not know” and “neither party had shown” why the trial court had acquitted the defendant of sexual abuse in the first degree. The SORA Court declined to find that, in acquitting the defendant of that count, the trial court discredited the victim's testimony or determined that the People had failed to prove the element of physical helplessness. Thereafter, upon relying on the victim's testimony before the grand jury that she was asleep when the defendant first had sexual contact with her, the court assessed 20 points under risk factor six.

The SORA guidelines provide for the assessment of 20 points under risk factor six if the victim suffered from, inter alia, “physical helplessness” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 11 [2006] ). “Physical helplessness” means that “a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act” (Penal Law § 130.00[7] ). This Court and others

138 A.D.3d 950

have found that definition to include a victim who was asleep at the beginning of the incident (see e.g. People v. Acevedo, 124 A.D.3d 500, 998 N.Y.S.2d 621 ; People v. Richardson, 101 A.D.3d 837, 838, 957 N.Y.S.2d 158 ; People v. Duff, 96 A.D.3d 1031, 946 N.Y.S.2d 891 ; People v. Howell, 82 A.D.3d 857, 918 N.Y.S.2d 364 ; People v. Caban, 61 A.D.3d 834, 835, 877 N.Y.S.2d 403 ; People v. Harris, 46 A.D.3d 1445, 1446, 848 N.Y.S.2d 792 ).

In establishing a sex offender's appropriate risk level assessment under SORA, the People have “the burden of proving the facts supporting the determinations sought by clear and convincing evidence” (Correction Law § 168–n [3 ]; see People v. Wyatt, 89 A.D.3d 112, 117–118, 931 N.Y.S.2d 85 ). “In assessing points, evidence may be derived from the defendant's admissions, the victim's statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board ... or any other reliable source, including reliable hearsay” (People v. Crandall, 90 A.D.3d 628, 629, 934 N.Y.S.2d 446 ; see People v. Mingo, 12 N.Y.3d 563, 573, 883 N.Y.S.2d 154, 910 N.E.2d 983 [case summaries, presentence reports, and grand jury testimony meet the “reliable hearsay” standard for admissibility at SORA proceedings]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5; People v. Finizio, 100 A.D.3d 977, 978, 954 N.Y.S.2d 636 ). A victim's grand jury testimony has been found to constitute “reliable hearsay” which is routinely relied upon by courts in assessing points under SORA (see e.g. People v. Mingo, 12 N.Y.3d at 573, 883 N.Y.S.2d 154, 910 N.E.2d 983 ; ...