| People v Britton |
| 2017 NY Slip Op 02073 [148 AD3d 1064] |
| March 22, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Quinn Britton, Appellant. |
Lynn W. L. Fahey, New York, NY (John B. Latella and Denise Corsi of counsel), forappellant.
Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove, Morgan J.Dennehy, and Julian Joiris of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Kings County (Del Giudice,J.), dated November 19, 2013, which, after a hearing, designated him a level two sex offenderpursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
The defendant contends that, in determining his risk level under the Sex OffenderRegistration Act (see Correction Law art 6-C; hereinafter SORA), the Supreme Courterroneously assessed 25 points against him under risk factor 2. We disagree. Correction Law§ 168-n (3) states that, in a SORA proceeding, the court "shall review any victim'sstatement," which includes a victim's testimony before the grand jury (see People v Harmon, 145 AD3d688, 690 [2016]). Grand jury minutes constitute reliable hearsay that is sufficient for SORApurposes (see People v Mingo, 12NY3d 563, 573 [2009]; People v Harmon, 145 AD3d at 690). Here, even though thedefendant was acquitted of rape in the first degree and criminal sexual act in the first degree athis criminal trial relating to the underlying conduct, the People established by clear andconvincing evidence, including the trial testimony and the victim's grand jury testimony, that thedefendant engaged in sexual intercourse, deviate intercourse, or aggravated sexual abuse with thevictim (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary[hereinafter Commentary] at 9 [2006]).
Additionally, the defendant contends that the Supreme Court erred in assessing 10 pointsagainst him under risk factor 12 for failure to accept responsibility for his criminal conduct.Under the particular circumstances of this case, the court should not have assessed 10 pointsunder risk factor 12. While testifying at his criminal trial, the defendant vigorously deniedcommitting any of the charges. Thereafter, during the SORA hearing, which occurredsimultaneously with the defendant's sentencing in the underlying criminal trial, the defendantinvoked his Fifth Amendment privilege against self-incrimination. This unique situationpresented him with the choice of either exercising his Fifth Amendment privilege againstself-incrimination and appealing his conviction with the hope of dismissal of the remainingcriminal charge against him or a new trial on that charge but being assessed 10 points under riskfactor 12, or, on the other hand, accepting responsibility and possibly incriminating himself if hisconviction was reversed on appeal resulting in a new trial (see [*2]People v Kearns, 68 AD3d1713, 1714 [2009]). Further, the People failed to establish, by clear and convincingevidence, facts to support the assessment of these points (see Correction Law§ 168-n [3]; Commentary at 5, 15-16; People v Mingo, 12 NY3d at 571).However, even deducting these 10 points from the total points assessed, the defendant remains apresumptive level two sex offender (seePeople v Correnti, 126 AD3d 681, 681 [2015]; People v Marsh, 116 AD3d 680, 681 [2014]; People v Mabee, 69 AD3d 820,820 [2010]).
Accordingly, the Supreme Court properly designated the defendant a level two sex offenderpursuant to Correction Law article 6-C. Leventhal, J.P., Hall, Austin and Barros, JJ., concur.