| People v Wells |
| 2016 NY Slip Op 02978 [138 AD3d 947] |
| April 20, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Donnie Wells, Appellant. |
Lynn W. L. Fahey, New York, NY (Joshua M. Levine of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano,Johnnette Traill, Laura T. Ross, and Christine DiSalvo of counsel), for respondent.
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 sexoffender 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 thevictim, 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 thedefendant on top of her, kissing her breasts. Thereafter, the defendant continued to kissthe victim's breasts, placed his mouth on her vagina, and inserted his penis inside hervagina. He told the victim to "close [her] eyes and think about something else" while heengaged 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 thirddegree (Penal Law § 255.25), and sexual misconduct (two counts) (PenalLaw § 130.20 [1], [2]).
Following a nonjury trial, by judgment rendered June 7, 2000, the defendant wasconvicted of sexual abuse in the third degree, incest in the third degree, and sexualmisconduct (two counts). He was acquitted on the count of sexual abuse in the firstdegree.
Upon the defendant's appeal from the judgment of conviction, this Court affirmedthe judgment (see People v Wells, 289 AD2d 599 [2001]). The Court of Appealsdenied the defendant's motion for leave to appeal (see People v Wells, 98 NY2d641 [2002]). At the time he committed the instant offenses, the defendant was underparole supervision based upon his conviction of various crimes unrelated to the instantmatter. Those crimes included murder in the second degree, for which the defendant wassentenced 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 [*2]the Sex Offender Registration Act(Correction Law art 6-C [hereinafter SORA]), the Board assessed the defendant a total of85 points, which presumptively placed the defendant in a risk level two category. Asparticularly relevant to the instant appeal, the defendant was assessed 20 points underrisk factor 6. Specifically, in the case summary, the Board explained that the basis for theassessment of those points was that the victim was "physically helpless as the abusebegan because she was asleep."
Prior to the SORA hearing, the People referred the Supreme Court (hereinafter theSORA Court) to the victim's grand jury testimony, and argued that this testimonyestablished, by clear and convincing evidence, that the victim was sleeping when theabuse began. Defense counsel submitted an affirmation dated April 8, 2013, inopposition to the assessment of points under risk factor 6 or, in the alternative, for adownward departure. Defense counsel attached to his affirmation, inter alia, the casesummary and the RAI. In his affirmation, counsel recounted the victim's trial testimonythat 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 firstdegree necessarily indicated that the trial court had not credited the victim's claim thatshe awakened in the middle of being sexually abused. Thus, counsel maintained thatthere was no reliable basis upon which to find that the victim was asleep at the beginningof the incident and assess points for physical helplessness.
A SORA hearing was subsequently conducted on May 2, 2013. At thecommencement of the hearing, defense counsel noted that, although the defendant'sconviction occurred after a trial, the People were relying on grand jury minutes whichhad not been provided to the SORA Court or the defendant. Counsel added, "since thePeople 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 theircontents." In response, the prosecutor stated that the People did not have the trialtestimony. The prosecutor did, however, provide the SORA Court and defense counselwith the "complaint report" and the indictment. Further, the prosecutor submitted thevictim's grand jury minutes for the court's in camera review. The court offered thedefendant an adjournment so that he could respond to "anything" the prosecutor hadfiled. The defendant, however, declined the court's offer of an adjournment.
The prosecutor argued that, at the trial, physical helplessness was "not charged in thiscase"; however, "the facts support[ed] a theory of physical helplessness for the sexualabuse." Defense counsel countered that, at the trial, physical helplessness was, in fact,charged with regard to the sexual abuse in the first degree count, of which the defendantwas acquitted. Defense counsel then reiterated that the trial court had "rejected" thevictim'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 twosex offender. In its findings of fact, the court stated that it had reviewed the Board's RAIand the case summary. The court stated that it did "not know" and "neither party hadshown" 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 trialcourt discredited the victim's testimony or determined that the People had failed to provethe element of physical helplessness. Thereafter, upon relying on the victim's testimonybefore the grand jury that she was asleep when the defendant first had sexual contactwith her, the court assessed 20 points under risk factor 6.
The SORA guidelines provide for the assessment of 20 points under risk factor 6 ifthe victim suffered from, inter alia, "physical helplessness" (Sex Offender RegistrationAct: Risk Assessment Guidelines and Commentary at 11 [2006]). "Physical helplessness"means that "a person is unconscious or for any other reason is physically unable tocommunicate unwillingness to an act" (Penal Law § 130.00 [7]). This Courtand others have found that definition to include a victim who was asleep at the beginningof the incident (see e.g. People vAcevedo, 124 AD3d 500 [2015]; People v Richardson, 101 AD3d 837, 838 [2012]; People v Duff, 96 AD3d1031 [2012]; People vHowell, 82 AD3d 857 [2011]; People v Caban, 61 AD3d 834, 835 [2009]; People v Harris, 46 AD3d1445, 1446 [2007]).
[*3] Inestablishing a sex offender's appropriate risk level assessment under SORA, the Peoplehave "the burden of proving the facts supporting the determinations sought by clear andconvincing evidence" (Correction Law § 168-n [3]; see People v Wyatt, 89 AD3d112, 117-118 [2011]). "In assessing points, evidence may be derived from thedefendant's admissions, the victim's statements, evaluative reports completed by thesupervising probation officer, parole officer, or corrections counselor, case summariesprepared by the Board . . . or any other reliable source, including reliablehearsay" (People v Crandall,90 AD3d 628, 629 [2011]; see People v Mingo, 12 NY3d 563, 573 [2009] [casesummaries, presentence reports, and grand jury testimony meet the "reliable hearsay"standard for admissibility at SORA proceedings]; Sex Offender Registration Act: RiskAssessment Guidelines and Commentary at 5; People v Finizio, 100 AD3d 977, 978 [2012]). A victim'sgrand jury testimony has been found to constitute "reliable hearsay" which is routinelyrelied upon by courts in assessing points under SORA (see e.g. People v Mingo,12 NY3d at 573; People vLancaster, 128 AD3d 786, 787 [2015]; People v Welch, 126 AD3d 773 [2015]; People vAcevedo, 124 AD3d at 500; People v Duff, 96 AD3d at 1031).
The crux of the defendant's argument on the instant appeal is that the People's incamera submission of the minutes of the victim's grand jury testimony, withoutdisclosure to him, and the SORA Court's consideration of those minutes in assessing the20 points under risk factor 6, violated his due process rights. At no time duringthe SORA hearing did the defendant request access to those grand jury minutes.Inasmuch as the defendant did not request access to the subject grand jury minutes, thereis no need to discuss the "two-step procedure" applicable to the disclosure of grand juryminutes (i.e., the defendant must demonstrate a compelling and particularized need forthe minutes, after which the court must undertake a balancing of various factors to assesswhether disclosure is appropriate under the circumstances presented [see CPL190.25 (4); People v Robinson, 98 NY2d 755, 756 (2002); People vFetcho, 91 NY2d 765, 769 (1998); Matter of Lungen v Kane, 88 NY2d 861,862-863 (1996)]). In addition, the defendant did not argue that he was deprived of anydue process protections because the People had submitted those minutes to the SORACourt for an in camera review and had not disclosed them to him. Thus, thesecontentions are unpreserved for appellate review (see People v Rodriguez, 21 NY3d 1030, 1031 [2013]; People v Charache, 9 NY3d829, 830 [2007]; People vWise, 127 AD3d 834, 834-835 [2015]; People v Leach, 106 AD3d 1387, 1388 [2013]; People v McLean, 55 AD3d973, 974 [2008]; People v Cureton, 299 AD2d 532 [2002]).
In any event, contrary to the defendant's contentions, reversal is not warranted in thiscase. SORA is regulatory rather than criminal in nature and is not intended to serve as aform of punishment (see Peoplev Gravino, 14 NY3d 546, 556-557 [2010]; People v Pettigrew, 14 NY3d 406, 408 [2010]; People vStevens, 91 NY2d 270, 275 [1998]; People v Gallagher, 129 AD3d 1252 [2015]; People v Parilla, 109 AD3d20, 23-24 [2013]). Thus, "the due process protections required for a risk levelclassification proceeding are not as extensive as those required in a plenary criminal orcivil trial" (Doe v Pataki, 3 F Supp 2d 456, 470 [SD NY 1998] [internalquotation marks omitted]; seePeople v Gutierrez-Lucero, 103 AD3d 89, 98 [2012]). However, a sex offenderfacing a risk level classification under SORA is entitled to certain fundamental dueprocess protections, including notice and an opportunity to be heard (see People vGutierrez-Lucero, 103 AD3d at 101). These rights include: (1) a judicialdetermination of his or her risk level classification, (2) notice of the classificationproceeding sufficiently in advance of the hearing to prepare a challenge, (3) notice of theproceeding which includes a statement of its purpose and the Board's recommended risklevel classification, (4) representation by counsel, (5) prehearing discovery, (6) proof bythe State of the facts supporting each risk factor by clear and convincing evidence, and(7) a right to appeal (see Correction Law § 168-n; People vDavid W., 95 NY2d 130, 133 [2000]; People v Gutierrez-Lucero, 103 AD3dat 98; People v Brooks, 308 AD2d 99, 103 [2003]; Doe v Pataki, 3 FSupp 2d at 471-473).
The Court of Appeals was recently presented with the issue of whether a defendant'sdue process rights were violated when the hearing court relied, in part, upon grand juryminutes that were not disclosed to the defense in reaching the defendant's SORA risklevel determination (see Peoplev Baxin, 26 NY3d 6 [2015]). The Court found that "[g]iven that [the] defendantis entitled to broad discovery of the evidence that is used against him in order to be ableto defend himself . . . the failure to disclose the grand jury minutes was adue process violation" (id. at 11). Significantly, the Court concluded that, giventhe overwhelming evidence which was disclosed to the defendant in support [*4]of the same risk factor, the error was harmless (see id.at 8, 11-12). It further recognized that "[t]his is not to say that grand jury minutesmust be disclosed to the defendant in every SORA proceeding as a matter of course. Itremains within the hearing court's discretion to limit the release of such minutes"(id. at 11).
Guided by these principles, even assuming that the defendant should have haddisclosure of the subject grand jury minutes, as in Baxin, any error in failing todisclose them was harmless. There was overwhelming, unchallenged evidence, whichprovided the requisite clear and convincing evidence supporting the assessment of 20points under risk factor 6. The record on appeal reveals that the defendant was amplynotified through statements contained in the case summary, the presentence report, andother disclosed evidence of the victim's version of the facts and, specifically, her accountthat she was asleep when the abuse began. Indeed, defense counsel specificallychallenged the assessment of points for physical helplessness based upon the victim'saccount of being asleep when the sexual abuse began. The portion of the victim's grandjury testimony relied upon by the SORA Court, namely, that the victim was asleep at thebeginning of the incident, is the exact account contained in the case summary, which wasfully disclosed to the defendant. Under these circumstances, the victim's grand jurytestimony was cumulative to the disclosed evidence (see People v Frosch, 69 AD3d 699, 700 [2010]).
The fact that the victim's grand jury testimony was merely cumulative to thedisclosed evidence belies the defendant's claim of prejudice (see id. at 700). Thedefendant's contention that, as a result of the nondisclosure, he was deprived of anopportunity to prepare a challenge and rebut the People's arguments is not supported bythe record. At the SORA hearing, the defendant's counsel argued, at length, regardingrisk factor 6 and urged the SORA Court to reject the victim's account that she was asleepwhen the abuse began.
The consistent element throughout this case has been the victim's description of thedetails of the sexual abuse and her physical and emotional condition at the time of theabuse. Her account was presented to the grand jury, and provided the basis for theindictment. Further, the defendant's counsel acknowledged at the SORA hearing that thevictim testified at the trial that she was asleep at the beginning of the sexual abuse.Counsel also referenced a UF-61 complaint report that contained the same narrative bythe victim. The issue of physical helplessness permeated the entire underlyingprosecution. The victim's account of the events and, in particular, that she was asleepwhen the abuse began, remained consistent from the very beginning. In the face of thisreality, the defendant's argument that the nondisclosure of the grand jury minutesrequires reversal of the order is unsustainable.
Our dissenting colleague contrasts Baxin with the instant case on the groundthat the defendant herein was convicted following a nonjury trial, whereas the defendantin Baxin pleaded guilty to committing various sexual offenses. The dissentconcludes that the defendant herein disputed at the trial the People's theory that thecomplainant was asleep when the abuse began and was ultimately acquitted of the sexualabuse in the first degree count. The record on appeal does not establish what wasdisputed at the trial, whether the element of physical helplessness was, in fact,challenged, if so how, or why the defendant was acquitted of the sexual abuse in the firstdegree count.
The defendant's contention that the SORA Court "speculated" as to why thedefendant was acquitted on the count of sexual abuse in the first degree is without merit.In fact, a reading of the record shows the exact opposite to be true. The court expresslydeclined both to speculate as to the trial court's reasons for the acquittal and tohypothesize that the reasons for that acquittal were based upon a finding that the victimwas incredible or a determination that the People had failed to prove the element ofphysical helplessness. The fact that the defendant was acquitted at the trial of sexualabuse in the first degree established only that the trial court did not find all the elementsof that offense to have been proved beyond a reasonable doubt, a more rigorous standardof proof than the clear and convincing standard applicable to SORA determinations (see People v Kost, 82 AD3d729 [2011]; People vVasquez, 49 AD3d 1282, 1284 [2008]).
[*5] The dissent's reliance on several cases discussingharmless error in the context of criminal convictions (see e.g. People vAlexander, 94 NY2d 382 [1999]; People v Garnes, 127 AD3d 1104 [2015]; People vSmith, 288 AD2d 496 [2001]; People v Robinson, 260 AD2d 508 [1999]) ismisplaced. These cases conclude that the evidence of the defendant's "guilt" was notoverwhelming under the "beyond a reasonable doubt" standard of proof and do notemploy the less stringent "clear and convincing" standard of proof applicable inestablishing a defendant's risk level assessment pursuant to SORA (compare CPL70.20 with Correction Law § 168-n [3]).
The defendant's remaining contentions, including his claim that he was entitled to adownward departure, are without merit.
Accordingly, the defendant was properly designated a level two sex offender. Rivera,J.P., Hinds-Radix and Duffy, JJ., concur.
Miller, J., dissents, and votes to reverse the order, on the law, and remit the matter tothe Supreme Court, Queens County, for a new risk assessment hearing and, thereafter, anew determination of the defendant's risk level, with the following memorandum: Irespectfully dissent and vote to reverse the order appealed from and remit this matter fora new hearing.
It was error for the Supreme Court to receive and rely upon ex parte evidence thatwas submitted in camera over the defendant's objection. Even a convicted sex offenderwho has perpetrated abhorrent acts against his own family has the constitutional right toreview the evidence presented against him. This violation of the defendant's fundamentalright to due process requires reversal so that the matter may be remitted for a newhearing. The inconvenience that a new hearing would entail cannot reasonably becompared to the importance of ensuring that the Sex Offender Registration Act(Correction Law art 6-C [hereinafter SORA]) process provides all parties with elementalfairness. Accordingly, I respectfully dissent and vote to reverse the order appealed fromand remit this matter for a new hearing.
The defendant in this case was charged with (1) sexual abuse in the first degree, (2)sexual abuse in the third degree, (3) incest, and (4) two counts of sexual misconduct(Queens County indictment No. 2500/98). The count charging the defendant with sexualabuse in the third degree alleged that the defendant subjected the complainant to sexualcontact without her consent (see Penal Law § 130.55). The countcharging sexual abuse in the first degree alleged that the defendant subjected thecomplainant to sexual contact while she was "incapable of consent by reason of beingphysically helpless" (Penal Law § 130.65 [2]).
At a nonjury trial, the People's theory was that the complainant was physicallyhelpless because, at the time the sexual contact was initiated, she had been asleep. Thecomplainant testified at the trial that she fell asleep and awoke to find the defendantpositioned between her legs and licking her breast. The complainant testified that her bedsheet and clothing had been removed while she lay sleeping and that she did not awakeuntil after the sexual contact had begun.
The defendant's trial counsel challenged the complainant's credibility. He argued thatit was unbelievable to think that the complainant had remained asleep while thedefendant allegedly undressed her, since such actions would have required him tophysically move her 140-pound body. The Supreme Court, in its capacity as thefactfinder at the nonjury trial, ultimately determined that the People failed todemonstrate, beyond a reasonable doubt, that the defendant subjected the complainant tosexual contact while she was physically helpless. Accordingly, the court found thedefendant not guilty of sexual abuse in the first degree. The defendant was neverthelessconvicted of the counts charging him with sexual abuse in the third degree, incest, andsexual misconduct (see People v Wells, 289 AD2d 599, 599-600 [2001]).
The defendant was sentenced to, inter alia, concurrent terms of imprisonment. On[*6]March 7, 2013, prior to his release from prison, theBoard of Examiners of Sex Offenders (hereinafter the Board) completed a RiskAssessment Instrument (hereinafter the RAI), pursuant to SORA. The Board assessed thedefendant a total of 85 points on the RAI, a score that would render him a presumptivelevel two (moderate) sex offender. As relevant here, the Board assessed the defendant 20points under risk factor 6 on the ground that he had subjected the complainant to sexualcontact while she was physically helpless.
By attorney affirmation dated April 8, 2013, the defendant's newly assigned attorneyopposed the Board's recommendation. Defense counsel argued, inter alia, that the Boardimproperly assessed the defendant points under risk factor 6. Defense counsel noted thatthe defendant had been acquitted on the sole count charging him with subjecting thecomplainant to sexual contact while she was physically helpless, and contended that theBoard's assessment of points under risk factor 6 was unsupported by any reasonable viewof the evidence.
The People's position was set forth in an undated document denominated "People'sNotice Pursuant to Correction Law § 168-d (3) [sic]" (hereinafter thePeople's Notice). The People contended, among other things, that the assessment ofpoints under risk factor 6 was appropriate. In this regard, the People "concede[d]" thatthe defendant's acquittal on the count charging him with sexual abuse in the first degree"prove[d] that 'physical helplessness' was not proven . . . beyond areasonable doubt." However, the People nevertheless argued that the complainant'ssworn testimony before the grand jury constituted clear and convincing evidencethat she "was 'sleeping' when [the defendant] raped her." In addition, the People arguedthat the court (hereinafter the SORA Court) should upwardly depart from thepresumptive risk level and adjudicate the defendant a level three sex offender.
In a reply affirmation dated April 30, 2013, the defendant's attorney argued that thePeople's Notice should be rejected. Defense counsel asserted that the People had servedtheir papers by mail on April 26, 2013, and that they were received by the defendant onApril 29, 2013—three days before the scheduled hearing date. Defense counselargued that the People's submissions should not be considered because they wereuntimely, in violation of Correction Law § 168-n (3). Defense counselnoted that this hearing date constituted the "third appearance of this matter before theCourt . . . with the People having requested both adjournments. . . because they were not prepared to go forward." Defense counselcontended that any further adjournments would "substantially prejudice the defendant,who [had] been held for more than a month beyond his open release date."
The defendant's SORA hearing was held on May 2, 2013. The SORA Courtrecognized that defense counsel had asked it to "reject the People's papers based ontimeliness." Defense counsel indicated that he had "one additional matter" that he wantedto address, and argued that it was inappropriate for the People to rely on the grand juryminutes since this case had gone to trial. Defense counsel also argued:
"In addition the People have not provided this Court or me with Grand Jury minutesand especially under that circumstance, it's inappropriate for the People to rely onthem.
"We had a trial in this case, and I submit to the Court since the People have notprovided me with the documents on which they are relying in this case, specifically theGrand Jury minutes, they should not be heard to argue as to their contents."
The assistant district attorney (hereinafter the ADA) sought to respond to defensecounsel's argument, but the court interjected:
"One second. What I was getting at with your argument with respect to the Peoplebeing allegedly late in filing their papers and asking the Court to reject their papers, thatportion of your argument is denied.
"If you want—if you need further time to respond to anything that the Peoplemay have filed, I will give you that time."
After defense counsel stated that he did not want more time, the SORA Courtpermitted the ADA to respond to defense counsel's arguments. The ADA acknowledgedthat the People had failed to comply with the statutory notice provisions, but she assertedthat she gave defense counsel a copy of the indictment and the complaint report earlierthat morning and that she "did submit in-camera the Grand Jury minutes to th[e] Court,. . . [s]o [defense counsel's] argument that they cannot be considered shouldfail."
The SORA Court stated that it was "going to permit [the ADA] to file papers at thistime." The court stated that if defense counsel requested an adjournment, the requestwould be granted, but the court did not offer to give defense counsel access to the grandjury testimony. Defense counsel responded that he did not request an adjournment, as hedid not "wish any further delay" given that his client remained incarcerated pending theSORA determination. However, defense counsel did "take exception" to the court'sruling. Notwithstanding defense counsel's objection to the use of ex parte evidence, at nopoint during the SORA hearing did the court raise the possibility of providing thedefendant with access to the evidence that had been submitted to it in camera.
The ADA proceeded to address the court with respect to the merits, arguing that theprimary issue in this case was risk factor 6. The People contended that the defendantshould be assessed 20 points under that risk factor on the ground that the defendantsubjected the complainant to sexual contact while she was physically helpless. The ADArepresented that she did not "have the trial testimony," but she failed to set forth anyefforts that were undertaken to locate the missing trial transcripts and she offered noexplanation as to why the trial transcripts could not be located. Although the ADA statedgenerally that the grand jury minutes were "relevant reliable hearsay," she did notrespond to defense counsel's argument that it was inappropriate to rely on grand jurytestimony where there had been a full trial, and she declined to provide any explanationas to why the grand jury transcripts constituted the best evidence available.
The ADA stated that while she did not have the trial transcript, she had looked at the"sex crime file" and understood the charges, and it was "clear that physical[ ]helplessness was not charged in this case." The prosecutor repeatedly represented thatphysical helplessness "was not charged" at the underlying trial, but that "the factssupport[ed] a theory of physical helplessness." The ADA stated that the grand juryminutes showed that the complainant fell asleep in the defendant's home and "awakenedto find her shirt off and his mouth on her breast." When the SORA Court asked the ADAif there were any other exhibits besides the grand jury minutes that the People wished topresent, the ADA handed the court a "complaint report" and referenced the indictmentthat was already in the court file.
Defense counsel responded that the ADA was "patently incorrect that physicalhelplessness was not charged in this case." Defense counsel continued: "physicalhelplessness was charged in the first degree sexual abuse count, and Justice Rotkerhearing the evidence and evaluating the credibility of the complainant after seeing andhearing her testify, rejected her credibility in that regard that she was asleep when theabuse began." Defense counsel argued "there is no valid basis upon which this Courtre-assessing the evidence should find other than Justice Rotker, the finder of fact."Accordingly, defense counsel concluded that the SORA Court should not assess thedefendant 20 points under risk factor 6.
The SORA Court adjudicated the defendant a level two sex offender. The courtnoted that the principal issue was whether the People showed that the complainant wasphysically helpless at the time the sexual contact began, resulting in a 20-pointassessment under risk factor 6. In this regard, the court stated that the People providedthe complainant's grand jury testimony wherein she stated that she was asleep at thebeginning of the incident. The court concluded that it could not determine why the trialcourt had acquitted the defendant of sexual abuse in the first degree, stating that the trialcourt may have rejected the complainant's testimony that she was asleep at the [*7]beginning of the incident, or it may have acquitted thedefendant of that count for some other reason. The court determined that for the purposesof the SORA hearing, it "credit[ed] the victim's testimony in the Grand Jury in which shetestified that she was sleeping when the defendant first had sexual contact with her." Onthe basis of this testimony, the court assessed the defendant 20 points under risk factor 6,and ultimately adjudicated the defendant a level two sex offender.
On appeal, the defendant contends that he was deprived of his statutory andconstitutional rights to due process when the SORA Court based its determination ongrand jury testimony that was not disclosed to him and had been submitted by the Peoplein camera. The defendant also contends that the grand jury testimony did not constitutethe "best evidence available," since there had been a trial in this case and there was noshowing that the trial transcripts were unavailable (People v Mingo, 12 NY3d 563, 574 [2009]).
The People argue that the defendant's "best available evidence" argument isunpreserved for appellate review. The People further argue that the SORA Courtproperly relied upon the grand jury testimony since such testimony has consistently beenheld to be sufficiently reliable to be admitted at SORA hearings. The People haveaddressed the merits of the defendant's due process claim, arguing that they were notrequired to disclose the grand jury testimony to him and, in fact, could not legallydisclose those transcripts in the absence of a court order. The People maintained that thedefendant was not prejudiced by his inability to review the grand jury transcripts, since"the relevant portions of the grand jury testimony . . . were referenced in notonly the Case Summary prepared by the Board, but in the complaint report as well, bothof which the defendant had at the hearing."
As an initial matter, it should be noted that the People have not argued on appeal thatthe defendant's due process arguments are unpreserved for appellate review. The issue ofwhether that claim was adequately preserved has not been briefed by either party, and, inmy view, it is inappropriate to raise that issue, sua sponte.
In any event, I do not agree with my colleagues' conclusion that the defendant did notpreserve this contention for appellate review. The Court of Appeals has held that "inorder to preserve a claim of error in the admission of evidence . . . adefendant must make his or her position known to the court" and that the "argument[must] be 'specifically directed' at the alleged error" (People v Gray, 86 NY2d 10,19 [1995], quoting People v Cona, 49 NY2d 26, 33 n 2 [1979]; see CPL470.05 [2]; People vMedina, 18 NY3d 98, 104 [2011]).
Here, defense counsel repeatedly objected to the People's use of the grand jurytestimony at the beginning of the SORA hearing. Defense counsel did not make ageneralized objection to the use of that testimony; he specifically stated the grounds forhis objection: "since the People have not provided me with the documents on which theyare relying in this case, specifically the grand jury minutes, they should not be heard toargue as to their contents." The defendant's failure to explicitly refer to a constitutionalsubdivision did not render his objections void (see People v Chestnut, 19 NY3d 606, 611 n 2 [2012]).Since defense counsel made his position known to the SORA Court, this Court mustreview the merits of the defendant's argument (see CPL 470.05 [2]). Even if thedefendant had failed to preserve this argument, it should be reached in the exercise ofdiscretion since the defendant's due process rights were undeniably violated during thecourse of this proceeding.
The primary purpose of SORA is "to protect the public from sex offenders"(People v Mingo, 12 NY3d at 574). Nevertheless, a "SORA determinationundeniably has a profound impact on a defendant's liberty interest due to the registrationand community notification provisions" (People v Brooks, 308 AD2d 99, 105[2003]; see People vGutierrez-Lucero, 103 AD3d 89, 98 [2012]; see also Doe v Pataki, 3 FSupp 2d 456, 471-473 [SD NY 1998]). For this reason, procedural protections arerequired to satisfy a defendant's right to due process of law (see People vGutierrez-Lucero, 103 AD3d at 98; People v Black, 33 AD3d 981, 981-982 [2006]; see alsoDoe v Pataki, 3 F Supp 2d at 471-473; accord People v Holmes, 111 AD3d 686, 687-688 [2013]).Indeed, even where "[t]echnical legal rules of evidence and procedure may bedisregarded . . . no essential element of a fair trial can be dispensed [*8]with unless waived" (Matter of Hecht v Monaghan,307 NY 461, 470 [1954]; see People v Russo, 149 AD2d 255, 261 [1989]).
"[I]ncluded in the fundamental requirement of a fair trial . . . is theentitlement of the party whose rights are being determined to be fully apprised of theproof to be considered, with the concomitant opportunity to cross-examine witnesses,inspect documents and offer evidence in rebuttal or explanation" (Matter of Simpsonv Wolansky, 38 NY2d 391, 395 [1975]; see Matter of McBarnette v Sobol,83 NY2d 333, 339 [1994]; Matter of Hecht v Monaghan, 307 NY at 470;People v Russo, 149 AD2d at 261). "It is axiomatic that that which is introducedinto evidence must be made available to the parties to the litigation" (People ex rel.Ryan v Warden, N.Y. City House of Detention, 113 AD2d 116, 119 [1985]; seePeople ex rel. Becker v Mitchell, 185 AD2d 133, 134 [1992]). Indeed, "[a] hearing isnot judicial, at least in any adequate sense, unless the evidence can be known" (OhioBell Telephone Co. v Public Util. Comm'n of Ohio, 301 US 292, 304 [1937,Cardozo, J.] [internal quotation marks omitted]). "Only the most extraordinarycircumstances could support one-sided process" (American-Arab Anti-DiscriminationComm. v Reno, 70 F3d 1045, 1070 [9th Cir 1995]; see United States vAbuhamra, 389 F3d 309, 328 [2d Cir 2004]; United States v Accetturo, 783F2d 382, 391 [3d Cir 1986]).
Here, in determining that the People satisfied their burden of establishing risk factor6 by clear and convincing evidence, the SORA Court relied upon grand jury testimonythat was submitted to it in camera. It is undisputed that the defendant was not permittedto review this evidence at any point during the proceedings. Even in the relaxedevidentiary setting of a SORA proceeding, the court's decision, over the defendant'sobjection, to base its factual findings on evidence that was not provided to the defendantdeprived him of his fundamental right to due process under both the state and federalconstitutions (see US Const, 14th Amend; NY Const, art I, § 6; People v Baxin, 26 NY3d6, 11 [2015]).
The People nevertheless contend that the defendant was not prejudiced by the failureto disclose the grand jury testimony to him since the contents of the grand jury minutesthat were relied upon by the People were cumulative to the other versions of thecomplainant's account contained in evidence that was disclosed to the defendant at thehearing. In other words, the People contend that, under the circumstances, it washarmless to deprive the defendant of his fundamental right to due process of law.
The Court of Appeals has generally stated that where a trial error has "operated todeny an[ ] individual defendant his [or her] fundamental right to a fair trial, the reviewingcourt must reverse the conviction and grant a new trial . . . without regard toany evaluation as to whether the errors contributed to the defendant's conviction"(People v Crimmins, 36 NY2d 230, 238 [1975]). More recently, the Court ofAppeals has stated that a violation of due process, such as the one that occurred in thiscase, may be considered harmless, at least in the context of SORA, so long as theevidence was overwhelming (see People v Baxin, 26 NY3d at 11).
In People v Baxin, the Court of Appeals considered "whether defendant's dueprocess rights were violated when the hearing court relied, in part, upon grand juryminutes that were not disclosed to the defense" (id. at 8). The Court held that "thefailure to disclose the grand jury minutes was a due process violation" (id. at11).
The Court of Appeals' holding was premised on the conclusion that a defendant in aSORA proceeding is "entitled to broad discovery of the evidence that is used against himin order to be able to defend himself" (id.). Although the Court evidently lookedto the statutory rights of the defendant in order to determine the scope of theconstitutional protections afforded by the due process clause, the error that it recognizedwas no mere discovery violation (see id.). The defendant in Baxin, likethe defendant here, was not simply deprived of the timely disclosure of his adversary'sproof; neither he nor his attorney was ever allowed to even look at the evidence that wasused against him (see id.).
In Baxin, the Court of Appeals nevertheless went on to conclude thatalthough the [*9]defendant's right to due process hadbeen violated, the error was "harmless" (id.). In Baxin, the defendantentered a plea of guilty to an underlying sex offense (id. at 8). In conducting itsharmless error analysis, the Court stated that "[t]here was overwhelming, unchallengedevidence in the form of the case summary, the criminal court complaint and defendant'sown confession, which provided the requisite clear and convincing evidence supportingthe assessment of points for a continuing course of sexual misconduct and which hadbeen properly disclosed to defendant" (id. at 11-12).
The evidence submitted by the People in this case, so far as the defendant waspermitted to review it, was not overwhelming and was challenged. In Baxin, thedefendant had entered a plea of guilty to the underlying sex crime and the SORA Courtrelied upon, among other things, the defendant's own lengthy confession in which headmitted to perpetrating the various criminal acts that formed the basis for the impositionof points under the disputed risk factor (see id. at 9). By contrast, the defendant inthis case went to trial and disputed the People's theory that the complainant was asleepwhen the abuse began. The defendant was ultimately acquitted of sexual abuse in the firstdegree after a full trial. At the SORA hearing, the People relied exclusively on thecomplainant's account to show that she was asleep when the abuse began. There was noconfession from the defendant in this case and the People submitted no other proof onthis point. Evidence is not overwhelming where, as here, a legal conclusion turns solelyon the credibility of a single witness (see People v Alexander, 94 NY2d 382, 385[1999]; People v Smith, 288 AD2d 496, 497 [2001]; People v Robinson,260 AD2d 508, 510 [1999]; People v Chirieleison, 1 AD2d 844, 845 [1956]).This is true no matter how many times the witness's account is repeated or reproduced(cf. People v McClean, 69 NY2d 426, 428 [1987]; People v Katz, 209NY 311, 342 [1913]). Since "[t]he evidence of the defendant's guilt without theerroneously admitted evidence was not overwhelming . . . the error cannotbe deemed harmless" (People vGarnes, 127 AD3d 1104, 1106 [2015]; see People v Gonzales, 111 AD3d 147, 153 [2013]).
Moreover, since the fact-finding determination of the SORA Court in making itsdetermination hinged on the weight to be given to the complainant's account, it isdifficult to quantify the precise effect that the grand jury testimony may have had on thecourt's factual determination. It is even more difficult to project what use defense counselwould have made of the grand jury testimony if he had been permitted access to it (cf.People v Casiano, 67 NY2d 906, 907 [1986]). The People argue that the grand jurytestimony had little, if any, effect on the fact-finding determination since thecomplainant's account of the incident before the gand jury was exactly the same as theversion of her account that was reproduced by the Board in the case summary.
Of course, it is impossible for the defendant to dispute the People's assertion. Sincethe defendant has never been permitted to review the grand jury testimony, he cannotevaluate whether the ex parte evidence is exactly the same as the evidence he waspermitted to review. Both at the SORA Court and on this appeal, the defendant's attorneyhas been effectively barred from exercising his own professional judgment to determinewhether the grand jury testimony was consistent with the other accounts given by thecomplainant and what effect the constitutional error may have had on the factfinder'sdetermination. By relegating these functions solely to the SORA Court and to the People,to be decided behind closed doors under the guise of harmless error review, thedefendant's representative has been all but eliminated from the adversarial process. Todate, such one-sided process has been reserved for "[o]nly the most extraordinarycircumstances" (American-Arab Anti-Discrimination Comm. v Reno, 70 F3d at1070), "when there has been a most compelling need and no alternative means ofmeeting that need" (United States v Accetturo, 783 F2d at 391). But to sanctionthis process here is to ensure that this species of due process violation will flourish.
The primary goal of SORA is to protect the public from the danger of recidivismposed by sex offenders (seePeople v Buss, 11 NY3d 553, 558 [2008]). As this Court has steadfastlyrecognized, "[i]n order to ensure that the rights of all persons are protected, thatgoal must invariably coexist with the fundamental elements of due process" (People vGutierrez-Lucero, 103 AD3d at 101). Here, the defendant's fundamental right to dueprocess was violated and this constitutional error cannot be considered harmless.Accordingly, I vote to remit this matter to the Supreme Court, Queens County, for a newrisk assessment hearing and, thereafter, a new determination of the defendant's risk level.If, as the People maintain, the properly admitted evidence amply [*10]demonstrates the applicability of the disputed risk factor,they would encounter little difficulty in prevailing at a new hearing, at which thedefendant's right to due process may be observed.
In light of the foregoing, I do not reach the defendant's remaining contentions,including his argument that the grand jury testimony did not constitute the "best evidenceavailable" since there had been a trial in this case and there was no showing that the trialtranscripts were unavailable (People v Mingo, 12 NY3d at 574).