People v. Brown

JOHN S. HALL, JR., J. be argued that "reliable hearsay" that would be otherwise excluded by the Crawford ruling, can be relied upon as the law of the case. It also can be argued that a SORA hearing is merely a ministerial classification, not a trial and that "[t]he purpose of [SORA] certification is administrative and ministerial rather than punitive." (See, People v Clark, 261 AD2d 97, 100 [1999].) The court does not so rule but chooses to apply the Crawford rule because it involves a fundamental constitutional right, the right to confront one's accusers. However, the statements being relied upon by the court in rendering this decision, except as otherwise noted, were made by the defendant, and thus do not involve his rights to confront his accusers and are not testimonial. Therefore, the court finds that the defendant's admissions and other reliable hearsay are sufficient to render a risk level determination after applying Crawford.

A Board of Examiners of Sex Offenders was established pursuant to section 168-l of the Correction Law. Subdivision (5) authorizes the Board to "develop guidelines and procedures to assess the risk of a repeat offense . . . and the threat posed to the public safety" (Correction Law § 168-l [5]). As a result, a "risk assessment instrument" or scorecard was developed to objectively and uniformly determine sex offenders' levels of risk. This court finds that the risk assessment instrument achieves the statutory mandate of providing "guidelines and procedures." In addition, it affords each sex offender in the state the same criteria for risk assessment regardless of which judge, in which county, or in which year an assessment is made. Furthermore, were the court to utilize any other method to determine the defendant's risk level, it would deprive both the defendant and the People of equal protection under the law as both objectivity and uniformity would be dubious. Thus the risk assessment instrument is the proper method to assess a defendant's risk level. The court, however, must independently review and assign a score for each risk factor and, where appropriate, assign a risk score which varies from the Board's recommendation. Due process requires, inter alia, judicial review of the Board's recommendations, not a "full evidentiary hearing with witnesses and direct and cross-examination." (Doe v Pataki, 3 F Supp 2d 456, 471 n 3; see also People v David W., 95 NY2d 130 [2000].) Although the defendant denies abusing his daughter over a 12-year period of time as alleged, the defendant did acknowledge molesting his daughter on one occasion. Therefore, the court finds that the defendant has accepted some responsibility, although minimal, for his actions and, giving the defendant the benefit of the doubt, the court does not assign any points under risk factors 12 or 13.

Evidence as to the foregoing is found to be clear and convincing, and despite being assigned zero points for acceptance of responsibility, the defendant presents a total risk factor score of 125 points. Therefore, it is hereby ordered that the defendant is hereby designated a level three offender, pursuant to article 6-C of the Correction Law. The defendant's conviction in Colorado is equivalent to the crime of aggravated sexual abuse in the third degree in the State of New York (Penal Law § 130.66). He is therefore designated a sexually violent offender per Correction Law § 168-a (3).