In response, the People contend that the facts alleged make out a completed rape and Defendant’s own statements and DNA testing confirm that he had sexual intercourse with the victim. The People then claim that, pursuant to another case, Courts are not limited to the single charge to which Defendant pled guilty, but rather, may rely on the victim’s sworn testimony, Defendant’s plea, Grand Jury testimony, Defendant’s statements and DNA evidence.
The sentencing court is charged with making the actual determination regarding whether a defendant is a Sexual Predator, Sexually Violent Offender or Predicate Sex Offender, and if he is to be designated as a Risk Level 1, 2 or 3. The sentencing court is to use the same factors as the Board in making its determination. However, the ability of the sentencing court to depart from the recommendation is premised on a recognition that an objective instrument, no matter how well designed, will not fully capture the nuances of every case. Therefore, the court may not depart from the presumptive risk level unless it concludes that there exists an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines.
At the hearing, the People bear the burden of proving the facts supporting the determination sought by clear and convincing evidence and in making the determinations the court shall review any victim’s statement and any relevant materials and evidence submitted by the sex offender and the district attorney and the recommendation and any materials submitted by the board, and may consider reliable hearsay evidence submitted by either party, provided that it is relevant to the determination. Facts previously proven at trial or elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence and shall not be religitated.
Under SORA, a Sexually Violent Offender is any sex offender convicted of a sexually violent offense, which includes a conviction for Attempted Sexual abuse in the First Degree. Therefore, Defendant, who has been convicted of this crime, has properly been categorized as a Sexually Violent Offender.
Likewise, “[d]efendant was properly classified as a level-two sex offender.” This classification “was supported by clear and convincing evidence, based on the facts contained in the Board’s Case Summary and Risk Assessment Instrument.”
Although the First Department has yet to rule on an analogous case, several court cases are instructive. In a case, the defendant was initially charged with several sex offenses against multiple victims. He later pled guilty to one count of attempted second degree sodomy against only one victim. At his risk assessment hearing, the defendant challenged the use of the Pre-Sentence Report and Grand Jury minutes.
The court also noted that where a defendant in his plea has admitted the commission of the crime, “SORA prohibits him from relitigating his guilt as facts previously proven at trial or elicited at the time of entry of a plea of guilty shall be deemed established by clear and convincing evidence.
At first blush the defendant’s arguments concerning this factor are compelling. After all, if the jury had acquitted on both counts, the defendant would not be subject to article 6-C at all, despite the sworn statements by the victim concerning multiple incidents of sexual intercourse. But, since the Risk Assessment Guidelines and Commentary allowed the [Board] to review the record despite the acquittal, this court cannot say that [the Board’s] determination to assess points for this factor was arbitrary and capricious or an abuse of discretion.
This Court notes that Defendant’s reliance on a case is misplaced. In that case, the court, as here, relied upon the victim’s statements to police as contained in the Pre-Sentence Report and not just the final charge. These statements indicated that the defendant engaged in multiple acts of sexual misconduct with the victim, but only attempted to engage in deviate sexual intercourse. The Third Department held that the guidelines were misapplied by adding points for engaging in deviate sexual intercourse since the “deviate sexual intercourse contemplates commission of specific sexual acts rather than attempted commission of those acts as occurred here.” By contrast, here, when reviewing the victim’s statements, and not just the final charge, it is clear that there were completed acts of sexual intercourse by Defendant and that he also acted in concert in allowing deviate sexual intercourse to be completed against the victim. His argument as to the 25 points being misappropriated to him thus fails.
By virtue of his conviction, the Court finds Defendant a Sexually Violent Offender. Additionally, Defendant is appropriately classified as a Risk Level 2. The felony complaint, Grand Jury testimony, victim’s statement and Pre-sentence Report all establish by clear and convincing evidence that Defendant used forcible compulsion (10 points), had sexual intercourse with the victim and acted in concert with co-defendant in having deviate sexual intercourse with her (25 points), and that the Defendant and victim were strangers (20 points).
Indeed, Defendant acknowledged in his sworn guilty plea and statement in the Pre-Sentence Report that he engaged in sexual intercourse with the victim against her will. The fact that Defendant pled to a lesser included offense is of no consequence. Although Defendant claims that he and the victim knew each other, the self-serving statement does not overcome the clear and convincing evidence that he and the victim were strangers as established.
In addition, Defendant’s rap sheet indicates that he has a prior misdemeanor conviction (5 points), which he does not contest. Likewise, the Case Summary indicates that Defendant has admitted to abusing alcohol on the night of the incident and to completing a substance abuse program for his addiction (15 points).
Moreover, the Case Summary also indicates Defendant had disciplinary problems while in custody, including an act of sexual misconduct (20 points). Specifically, “during a visit with his wife and mother, [he] was observed with his hand `in between his wife’s legs, outside of clothing, rubbing her crotch vigorously.’ He also was placed in Protective Custody in May 2003 after being slashed on his face for gang activity. Therefore, Defendant was appropriately assessed a total of 95 points and classified as a Risk Level 2, and the Court so finds. ORDERED, that Defendant is hereby adjudicated a Risk Level 2 Sexually Violent Offender.