| People v Johnson |
| 2010 NY Slip Op 07584 [77 AD3d 548] |
| October 26, 2010 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JeromeJohnson, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Brian J. Reimels of counsel), respondent.
Order, Supreme Court, Bronx County (Robert Torres, J.), entered on or about December 13,2007, which adjudicated defendant a level three sex offender pursuant to the Sex Offender RegistrationAct (Correction Law art 6-C), affirmed, without costs.
The People met their burden of establishing, by clear and convincing evidence, risk factors bearinga sufficient total point score to support a level three sex offender adjudication. Although defendantpleaded guilty to statutory rape (Penal Law § 130.25 [2]) and not rape involving forciblecompulsion, in determining the proper classification, the Board of Examiners of Sex Offenders is notlimited to a defendant's admissions upon entering a plea but may consider reliable hearsay evidence(Correction Law § 168-n [3]; seePeople v Mingo, 12 NY3d 563, 571 [2009]), including the risk level assessment instrument,victim statement, case summary and presentence investigation report (see e.g. People v Dort, 18 AD3d 23,25 [2005], lv denied 4 NY3d 885 [2005]). Here, the finding of forcible compulsion is amplysupported (see People v Coleman, 42 NY2d 500, 505 [1977] [significant is "not what thedefendants would have done, but rather what the victim, observing their conduct, feared they would ormight do if she did not comply with their demands"]); the superior court information includes the13-year-old victim's statement that the 29-year-old defendant was aided by two unapprehended maleswho restrained and assaulted her (see People v Wroten, 286 AD2d 189, 199 [2001], lvdenied 97 NY2d 610 [2002]).
As to other criteria, the drug or alcohol abuse factor was established by defendant's admission tocorrections personnel that he had a "problem with marijuana" as well as by the results of a screeningtest for alcoholism (see People vGonzalez, 48 AD3d 284 [2008], lv denied 10 NY3d 711 [2008]). The factor forlack of acceptance of responsibility was established by evidence that defendant denied responsibility forforcible rape and refused or was expelled from treatment programs (see People v Lewis, 50 AD3d 1567,1568 [2008], lv denied 11 NY3d 702 [2008]). Finally, points were properly assessed underthe lack of supervision factor even though that circumstance resulted from defendant's having fullyserved his sentence (see People vTejada, 51 AD3d 472 [2008]).
Defendant did not establish any basis for a downward departure.[*2]
All concur except McGuire, J. who concurs in a separatememorandum as follows: Defendant pleaded guilty to the sole count of a superior court informationcharging him with third-degree rape (Penal Law § 130.25 [2]) for engaging in sexual intercoursewith a person less than 17 years old. The majority upholds an assessment of 10 points for forciblecompulsion even though defendant never was charged with rape by forcible compulsion in the superiorcourt information, and an assessment of 15 points for refusing to accept responsibility because hedenied he was guilty of a forcible compulsion rape. I disagree as to both assessments.
We can uphold the assessment for forcible compulsion only if the People met their burden ofproving forcible compulsion by clear and convincing evidence (see Correction Law 168-n [3]).That is, we can uphold it only if the People proved it "highly probable" that defendant committed therape by forcible compulsion (see Matter ofPoldrugovaz, 50 AD3d 117, 127 [2008] [internal quotation marks omitted]). The sole item ofproof supporting this assessment is plainly hearsay, a statement in the felony complaint, albeit one swornto by the victim, who was 13 years old at the time, to the effect that defendant committed the act ofintercourse while another person held her down and a third person held her leg open. I agree with themajority that the assessment for forcible compulsion is not precluded by the fact that defendant was notcharged in the superior court information with forcible rape. Unquestionably, however, the fact thatdefendant was not charged with forcible compulsion is highly relevant and undermines the majority'sposition. Indeed, as the pertinent guideline states, "[T]he fact that an offender was not indictedfor an offense may be strong evidence that the offense did not occur. For example, where a defendantis indicted for rape in the first degree on the theory that his victim was less than 11 [years old], but noton the theory that he used forcible compulsion, the Board or court should be reluctant to conclude thatthe offender's conduct involved forcible compulsion" (Sex Offender Registration Act: Risk AssessmentGuidelines and Commentary, General Principles ¶ 7, at 5 [2006] [citations omitted]).
The majority is hasty where it should be hesitant. Without explanation, it implicitly determines thatthis statement is alone sufficient to establish that it is highly probable that defendant used forciblecompulsion. That determination is contrary to the common sense of the guideline. I note, too, that thefelony complaint did charge forcible compulsion. Thus, the District Attorney clearly decided not tocharge defendant with the crime that the majority decides that he in fact committed. In deference to theDistrict Attorney, I think we should conclude, and I assume the majority agrees, that the DistrictAttorney made a considered decision not to charge rape on a forcible compulsion theory. Of course, itis not impossible that the District Attorney concluded that the evidence was sufficient to prove forciblecompulsion rape but nonetheless decided not to charge defendant with that violent felony offense (PenalLaw § 70.02 [1] [a]). But nothing that transpired at the SORA hearing indicates that the DistrictAttorney so concluded. Given both that the class B felony of forcible rape is a very serious crime andthat defendant has a prior violent felony conviction, the SORA record should provide a strong basis forconcluding that the District Attorney permitted defendant to plead to a crime less serious than the onethat could be proven.
As noted, the statement in the felony complaint is hearsay. Even assuming that because it is a swornstatement, it is reliable hearsay (see People vMingo, 12 NY3d 563, 573 [2009] [hearsay is reliable for "SORA purposes" if, based on "thecircumstances surrounding the [*3]development of the proof," areasonable person would deem it "trustworthy"]), as it must be to support the finding (seeCorrection Law § 168-n [3]), it does not follow that it is sufficient to constitute clear andconvincing proof of forcible compulsion. But with respect to the question of whether it is reliablehearsay, I note that we know virtually nothing about the circumstances surrounding the development ofthis proof. In any event, the majority dilutes the clear and convincing evidence requirement in upholdingthis assessment. That hearsay statement alone, from a 13 year old about whom we know virtuallynothing, corroborated by nothing and not readily reconciled with the charging decision of the DistrictAttorney, is insufficient to establish that it is highly probable that defendant used forcible compulsion.
With respect to the 15-point assessment under the acceptance of responsibility category, thePeople concede that they were required to show both that defendant has not accepted responsibility forhis criminal conduct and has refused or been expelled from treatment. The only supposed evidencesupporting the first prong is that defendant, who admitted to the police (in written and videotapedstatements) that he had engaged in intercourse with the underage victim, waived indictment and pleadedguilty, denied committing the rape by means of forcible compulsion. Obviously, if I am correct that theevidence was insufficient to meet the People's burden on the issue of forcible compulsion, it follows thatdefendant should not have been assessed 15 points for denying the commission of a crime the Peopledid not prove he had committed.
I agree with the majority that defendant's other contentions are without merit. I would add only thatdefendant's statement to a correction officer or officers that he had a "problem with marihuana" is anadmission and thus is not, as defendant maintains, hearsay. Although the statement in the riskassessment instrument that defendant had scored "alcoholic" on the "Michigan Alcohol Screening Test"is unexplained, the People met their burden under the history of drug and alcohol abuse category withthat statement and defendant's admission.
Defendant would remain a presumptive level three offender even if we were not upholding theassessments for forcible compulsion and failure to accept responsibility. As I think a downwarddeparture would still not be appropriate, I join with the majority in affirming the order adjudicatingdefendant a level three offender. Concur—Tom, J.P., Andrias, McGuire and Manzanet-Daniels,JJ.