| People v Harmon |
| 2016 NY Slip Op 08210 [145 AD3d 688] |
| December 7, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Cleophus Harmon, Appellant. |
Seymour W. James, Jr., New York, NY (Lorca Morello of counsel), forappellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove andAnthea H. Bruffee of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Parker,J.), entered September 27, 2012, which, after a hearing, designated him a level three sexoffender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
In 2001, the defendant sexually abused his former girlfriend's son. In 2009, thedefendant was indicted and charged with course of sexual conduct against a child in thefirst degree against this victim, and course of sexual conduct against a child in the seconddegree (two counts) with respect to two other victims. In 2010, he pleaded guilty tocourse of sexual conduct against a child in the first degree in full satisfaction of theindictment and was sentenced, inter alia, to a term of imprisonment.
The Board of Examiners of Sex Offenders (hereinafter the Board) assessed thedefendant a level three sex offender pursuant to the Sex Offender Registration Act(see Correction Law art 6-C; hereinafter SORA). The Board assessed thedefendant 135 points, including 30 points on the ground that the his conviction wasbased upon an indictment charging him with sex crimes against three victims. The Boardfurther noted that the defendant was presumptively a level three sex offender based upona prior felony conviction of a sex crime, which subjected him to an upward override. Thecase summary noted that the defendant was convicted in 1981 of rape in the firstdegree.
At a SORA hearing, defense counsel argued that, although the defendant freelyadmitted his conduct with respect to his former girlfriend's son, he denied the conductalleged with respect to the two other children. Defense counsel argued that the grand jurytestimony submitted to substantiate those allegations was not subject tocross-examination and therefore did not constitute clear and convincing evidence.Defense counsel maintained that the defendant could not be assessed 30 points for threevictims, dropping his points assessment to 105 points and rendering him presumptively alevel two sex offender.
The Supreme Court concluded that the grand jury minutes constituted clear andconvincing evidence of the number of victims in 2001 and confirmed the assessment of135 points. The court further concluded that the Board properly applied an upwardoverride as a result of the defendant's 1981 conviction of rape in the first degree, whichwas another ground for assessing him [*2]a level threesex offender.
The defendant argues that the People's disclosure of grand jury minutes in this caseviolated CPL 190.25 (4), citing Matter of District Attorney of Suffolk County (58NY2d 436, 444, 446 [1983]), which ruled that grand jury minutes cannot be disclosed ina civil proceeding without a demonstration of a "compelling and particularized need" andthat it is "impossible" to make a case without the grand jury minutes. However, thisargument has been uniformly rejected by the courts (see People v Lancaster, 128 AD3d 786, 787 [2015]; People v Jewell, 119 AD3d1446 [2014]; People vHoward, 52 AD3d 273 [2008]). Correction Law § 168-n (3) statesthat the court in a SORA proceeding "shall review any victim's statement," whichincludes a victim's testimony before the grand jury (see People v Lancaster, 128AD3d at 787; People vJewell, 119 AD3d 1446 [2014]). Grand jury testimony constitutes reliablehearsay that is sufficient for SORA purposes (see People v Mingo, 12 NY3d 563, 573 [2009]). Wheregrand jury testimony is "undermined by other more compelling evidence," it need not becredited unless corroborated by other evidence (id. at 573; see People v Carleo, 82 AD3d1067, 1068 [2011]; see also People v Mingo, 12 NY3d at 573). However, inthis case, no conflicting evidence was submitted.
Further, the defendant was subject to an upward override based upon his 1981conviction of rape in the first degree. Therefore, even if the points assessment wereinsufficient to render the defendant presumptively a level three sex offender, the overridewas sufficient to render him presumptively a level three sex offender (see People v Berry, 138 AD3d945 [2016]).
The defendant's remaining contentions are without merit (see Correction Law§ 168-l [5]; People v Gravino, 14 NY3d 546, 556 [2010]; People v Wells, 138 AD3d947 [2016]; People vParilla, 109 AD3d 20, 22-30 [2013]; People v Miller, 77 AD3d 1386 [2010]; People v Szwalla, 61 AD3d1289 [2009]).
Accordingly, the defendant was properly designated a level three sex offenderpursuant to Correction Law article 6-C. Dillon, J.P., Dickerson, Hinds-Radix andMaltese, JJ., concur.