| People v Holmes |
| 2013 NY Slip Op 07459 [111 AD3d 686] |
| November 13, 2013 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Charles E. Holmes, Appellant. |
—[*1] Kathleen M. Rice, District Attorney, Mineola, N.Y. (Yael V. Levy and Kevin C.King of counsel), for respondent.
Appeal by the defendant from an order of Supreme Court, Nassau County (St.George, J.), dated February 24, 2011, which, after a hearing to redetermine his sexoffender risk level pursuant to the stipulation of settlement in Doe v Pataki (3 FSupp 2d 456 [1998]), designated him a level two sex offender pursuant to CorrectionLaw article 6-C.
Ordered that the order is reversed, on the law, without costs or disbursements, andthe matter is remitted to the Supreme Court, Nassau County, for a new hearing anddetermination in accordance herewith.
In 1994, the defendant was convicted of sexual abuse in the first degree, upon hisplea of guilty, in full satisfaction of an information charging him with rape in the firstdegree, sexual abuse in the first degree, and incest. During his plea allocution, thedefendant admitted that on March 21, 1992, he grabbed his teenage daughter's breastsand that he did so for sexual gratification, thereby establishing the elements of sexualabuse in the first degree (see Penal Law § 130.65). The defendant wassentenced to time served plus five years of probation.
In approximately 2006, the defendant's daughter recanted her allegations that herfather had abused her. In 2011, the defendant moved to vacate his conviction pursuant toCPL 440.10, relying on affidavits from the victim in which she claimed that she hadfabricated the allegations against her father which led to his conviction. In an order datedMarch 31, 2011, the Supreme Court denied the defendant's CPL 440.10 motion, and aJustice of this Court denied his application for leave to appeal from that order.
The instant appeal involves the defendant's classification pursuant to the SexOffender Registration Act (hereinafter SORA). At a hearing to redetermine thedefendant's sex offender risk level pursuant to the stipulation of settlement in Doe vPataki (3 F Supp 2d 456 [1998]), the People offered into evidence, inter alia, theoriginal probation report prepared for the defendant's sentencing and a signed supportingdeposition given by the defendant's daughter at the time the charges were brought againstthe defendant, which collectively indicated that the conduct underlying the defendant'sconviction consisted of the defendant engaging in sexual intercourse with his daughteron numerous occasions over a period of years. The People also introduced and reliedupon [*2]a risk assessment instrument prepared by theBoard of Examiners of Sex Offenders assessing, as relevant to this appeal, 25 pointsunder risk factor 2 for engaging in sexual intercourse with the victim, 20 points underrisk factor 4 for engaging in a continuing course of conduct with the victim, and 15points under risk factor 11 for a history of substance abuse. The Supreme Court foundthat the People met their burden of establishing facts supporting the assessment of thesepoints under risk factors 2, 4, and 11 (as well as other risk factors not challenged onappeal), resulting in a total score of 95 points, and a presumptive risk level of two.Finding that no overrides or departures were warranted, the court designated thedefendant a level two sex offender, and this appeal ensued.
The Supreme Court erred in precluding the defendant from offering into evidenceaffidavits from his daughter recanting the underlying allegations of sexual abuse, anddenying the defendant's motion in limine to permit his daughter to testify at the SORAhearing. At a SORA hearing, "[t]he court shall allow the sex offender to appear and beheard" (Correction Law § 168-n [3]). The People bear of the burden ofestablishing, by clear and convincing evidence, the facts supporting the assessment ofpoints under the Guidelines issued by the Board of Examiners of Sex Offenders underthe Sex Offender Registration Act (see Correction Law art 6-C [hereinafterSORA]; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at5 [2006]). The SORA court "shall review any victim's statement and any relevantmaterials and evidence submitted by the sex offender and the district attorney and therecommendation and any materials submitted by the board, and may consider reliablehearsay evidence submitted by either party, provided that it is relevant to thedeterminations" (Correction Law § 168-n [3]). Further, "[f]acts previously provenat trial or elicited at the time of entry of a plea of guilty shall be deemed established byclear and convincing evidence and shall not be relitigated" (Correction Law §168-n [3]). Here, the only facts elicited at the time of the defendant's plea of guilty werethat, on one occasion, he touched his daughter's breasts and that he did so for sexualgratification, and therefore he was barred from relitigating those facts in this SORAproceeding (see Correction Law § 168-n [3]). However, the defendant wasentitled to rely upon the proffered evidence for the limited purpose of contesting thePeople's allegations that he engaged in intercourse with his daughter and that the sexualmisconduct was ongoing, which resulted in the assessment of points under risk factors 2and 4. Since the excluded evidence was relevant to material issues at the hearing (i.e., thenature and duration of the sexual contact), the defendant should have been permitted tointroduce it (see People v Scarola, 71 NY2d 769, 777 [1988] ["Evidence isrelevant if it has any tendency in reason to prove the existence of any material fact, i.e., itmakes determination of the action more probable or less probable than it would bewithout the evidence"]). Accordingly, the defendant is entitled to a new SORA hearingand determination. We express no view as to the weight the Supreme Court should giveto this evidence at a new hearing.
The defendant's remaining contentions are without merit or have been renderedacademic in light of our determination. Dillon, J.P., Sgroi, Cohen and Miller, JJ., concur.