Defendant pleaded guilty to the sole count of superior court information charging him with third-degree rape for engaging in sexual intercourse with a person less than 17 years old. The majority upholds an assessment of 10 points for forcible compulsion even though defendant never was charged with rape by forcible compulsion in the superior court information, and an assessment of 15 points for refusing to accept responsibility because he denied he was guilty of a forcible compulsion rape. The Supreme Court, Bronx County adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act. An New York Criminal Lawyer said the defendant appealed.
The issue in this case is whether defendant is guilty of the crime charged.
The Court can uphold the assessment for forcible compulsion only if the People met their burden of proving forcible compulsion by clear and convincing evidence. That is, only if the People proved it “highly probable” that defendant committed the rape by forcible compulsion. The sole item of proof supporting this assessment is plainly hearsay, a statement in the felony complaint, albeit one sworn to by the victim, who was 13 years old at the time, to the effect that defendant committed the act of intercourse while another person held her down and a third person held her leg open. The Court agrees with the majority that the assessment for forcible compulsion is not precluded by the fact that defendant was not charged in the superior court information with forcible rape.
Unquestionably, however, the fact that defendant was not charged with forcible compulsion is highly relevant and undermines the majority’s position. Indeed, as the pertinent guideline states, The fact that an offender was not indicted for an offense may be strong evidence that the offense did not occur.
The majority is hasty where it should be hesitant. Without explanation, it implicitly determines that this statement is alone sufficient to establish that it is highly probable that defendant used forcible compulsion. That determination is contrary to the common sense of the guideline
The Court notes, too, that the felony complaint did charge forcible compulsion. Thus, the District Attorney clearly decided not to charge defendant with the crime that the majority decides that he in fact committed. In deference to the District Attorney, I think we should conclude, and I assume the majority agrees, that the District Attorney made a considered decision not to charge rape on a forcible compulsion theory. Of course, it is not impossible that the District Attorney concluded that the evidence was sufficient to prove forcible compulsion rape but nonetheless decided not to charge defendant with that violent felony offense. But nothing that transpired at the SORA hearing indicates that the District Attorney so concluded. Given both that the class B felony of forcible rape is a very serious crime and that defendant has a prior violent felony conviction, the SORA record should provide a strong basis for concluding that the District Attorney permitted defendant to plead to a crime less serious than the one that could be proven.
As noted, the statement in the felony complaint is hearsay. A Westchester County Criminal Lawyer said that even assuming that because it is a sworn statement, it is reliable hearsay, it does not follow that it is sufficient to constitute clear and convincing proof of forcible compulsion. But with respect to the question of whether it is reliable hearsay, the Court notes that it knows virtually nothing about the circumstances surrounding the development of this proof. In any event, the majority dilutes the clear and convincing evidence requirement in upholding this assessment. That hearsay statement alone, from a 13 year old about whom we know virtually nothing, corroborated by nothing and not readily reconciled with the charging decision of the District Attorney, is insufficient to establish that it is highly probable that defendant used forcible compulsion.
The Court said that, the People met their burden of establishing, by clear and convincing evidence, risk factors bearing a sufficient total point score to support a level three sex offender adjudication. Although defendant pleaded guilty to statutory rape (and not rape involving forcible compulsion, in determining the proper classification, the Board of Examiners of Sex Offenders is not limited to a defendant’s admissions upon entering a plea but may consider reliable hearsay evidence including the risk level assessment instrument, victim statement, case summary and presentence investigation report. Here, the finding of forcible compulsion is amply supported.
Significant is “not what the defendants would have done, but rather what the victim, observing their conduct, feared they would or might do if she did not comply with their demands, the superior court information includes the 13-year-old victim’s statement that the 29-year-old defendant was aided by two unapprehended males who restrained and assaulted her.
A Long Island Criminal Lawyer said that, as to other criteria, the drug or alcohol abuse factor was established by defendant’s admission to corrections personnel that he had a “problem with marijuana” as well as by the results of a screening test for alcoholism. The factor for lack of acceptance of responsibility was established by evidence that defendant denied responsibility for forcible rape and refused or was expelled from treatment programs. Finally, points were properly assessed under the lack of supervision factor even though that circumstance resulted from defendant’s having fully served his sentence.
Defendant did not establish any basis for a downward departure. Thus, the Court held that the order of the Supreme Court, Bronx County which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act is affirmed.
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