People v. Mingo

The dissent did not rule out the possibility that the documents could support a point assessment but was troubled by the District Attorney’s failure to lay a foundation to support the inference that the victim was the source of the information contained in the documents. Thus, the dissent would have reversed and remitted the case to the SORA court for further proceedings. This Court granted defendant leave to appeal ( 10 NY3d 929 [2008]) and, like the Appellate Division dissenter, we conclude that a reversal and remittal is warranted.

People v Dzemil Balic

Dzemil Balic pleaded guilty to sexual abuse in the first degree based on a 2004 incident in which he forcibly fondled the breasts and buttocks of a woman who attended classes in a building where he worked as a custodian. In the RAI prepared for the SORA proceeding, the District Attorney assessed defendant 40 points under the prior convictions section as a result of a 1985 misdemeanor assault conviction that occurred when defendant was 19 years old. The People imposed 10 points for factor 8 since defendant’s age at the time of that offense was 20 years or less and 30 points for factor 9 because they viewed the 1985 crime as a prior “sex crime.” Absent the inclusion of these points, defendant’s point assessment would have resulted in presumptive level one, the low risk category.

Since the elements of misdemeanor assault do not require conduct of a sexual nature (see Penal Law § 120.00 [1]), at the SORA hearing the District Attorney relied on the criminal complaint filed in connection with the prior 1985 prosecution, which had culminated in defendant entering a guilty plea. The criminal complaint was signed under oath by a police officer who stated that, on the day of the crime, the victim—a 14-year-old girl identified by name—told the officer that defendant had forcibly fondled her, attempted to remove her clothes, and threatened that he would shoot her unless she did as he said. The People had attempted to locate other information regarding the 1985 assault, twice obtaining an adjournment to search for additional evidence, but discovered that all other relevant documents had been destroyed by fire or flood.

Defense counsel objected to the assessment of 40 points, arguing that the references to “sexual misconduct” and “[s]ex crime” in factors 8 and 9 required that defendant have a prior conviction of one of the sex offenses enumerated in SORA and misdemeanor assault did not qualify. In the alternative, defen

§ 168-n [3]; see also Correction Law § 168-d [3]). The Board of Examiners of Sex Offenders has explained that the information used to determine defendant’s risk level “can be derived from the sex offender’s admissions; the victim’s statements; the evaluative reports of the supervising probation officer, parole officer or corrections counselor; or from any other reliable source” (Board of Examiners of Sex Offenders, Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, General Principles ¶ 7, at 5 [2006]). Beyond this, neither the Legislature nor the Board of Examiners of Sex Offenders have further specified the types of evidentiary materials admissible in a SORA proceeding. But one thing is undisputed—the Legislature did not limit the proof to what would be admissible at a civil or criminal trial.

Defendants suggest that this Court apply the standards developed in other administrative and preliminary hearing contexts to fashion an admissibility standard, such as the multifactored analysis employed in federal disability benefits cases (see e.g. Richardson v Perales, 402 US 389 [1971]) or the Aguilar-Spinelli test used by New York courts to assess whether there was probable cause for a search or arrest (see People v Hetrick, 80 NY2d 344 [1992]). While the approaches taken in these other spheres are certainly helpful in identifying factors relevant to our analysis, SORA proceedings further an important and unique public safety function and we therefore decline to adopt wholesale a body of evidentiary rules developed in another context.

Reliable Hearsay

To determine a standard of admissibility for risk level determination hearings, we begin by reviewing the evidence New York courts have consistently deemed reliable in SORA proceedings. The Appellate Divisions have routinely upheld determinations based on information found in case summaries prepared by the Board of Examiners of Sex Offenders and presentence reports prepared by a probation department for use by sentencing courts (see e.g. People v Lewis, 45 AD3d 1381 [4th Dept 2007], lv denied 10 NY3d 703 [2008]; People v Craig, 45 AD3d 1365 [4th Dept 2007], lv denied 10 NY3d 702 [2008]; People v Ahlers, 10 AD3d 770 [3d Dept 2004], lv denied 4 NY3d 704 [2005]; People v Burgess, 6 AD3d 686 [2d Dept 2004], lv denied 3 NY3d 604 [2004]; People v Dorato, 291 AD2d 580 [3d Dept 2002]). The Board of Examiners of Sex Offenders is charged

with producing accurate case summaries as an integral part of its functions and it has expertise culling through records to produce a concise statement of the factual information relevant to defendant’s risk of reoffense. Similarly, to assist the court in imposing an appropriate sentence, probation departments are charged with gathering a wide variety of information for inclusion in presentence reports—reports that “may well be the single most important document at both the sentencing and correctional levels of the criminal process” (People v Hicks, 98 NY2d 185 , 189 [2002] [internal quotation marks and citations omitted]).

Case summaries and presentence reports are prepared with the knowledge that they will be relied on by courts. No foundation is necessary for their consideration at SORA hearings because such documents are created under statutory mandates and their origins and function are well-known to SORA courts (see e.g. People v Fiene, 56 AD3d 921 [3d Dept 2008] [no testimony was required to explain the uses of the RAI, the presentence investigation report or the case summary]). Of course, information found in a case summary or presentence report need not always be credited—it may be rejected when it is unduly speculative or its accuracy is undermined by other more compelling evidence. But case summaries and presentence reports certainly meet the “reliable hearsay” standard for admissibility at SORA proceedings.

Similarly, grand jury testimony has been deemed sufficiently trustworthy for SORA purposes (see e.g. People v Imbert, 48 AD3d 297 [1st Dept 2008], lv denied 10 NY3d 714 [2008]; People v Concepcion, 38 AD3d 739 [2d Dept 2007], lv denied 9 NY3d 801 [2007]; People v Dort, 18 AD3d 23 [3d Dept 2005], lv denied 4 NY3d 885 [2005]). Although not subject to cross-examination, this evidence is taken under oath, a significant, though not indispensable, indication of reliability. Other sworn documents have also been consistently accepted by SORA courts, including misdemeanor and felony complaints (see People v Moore, 16 AD3d 190 [1st Dept 2005], lv denied 4 NY3d 889 [2005]; People v Conway, 47 AD3d 492 [1st Dept 2008], lv denied 10 NY3d 708 [2008]). Similar to case summaries and presentence reports, no foundation is necessary to justify receipt of this type of evidence at a SORA hearing because the circumstances surrounding the development of the proof are evident from the face of the document and are well understood by a SORA court.

With this in mind, we turn to the purpose underlying SORA—to protect the public from sex offenders. Given the significance of the mission, an accurate determination of the risk a sex offender poses to the public is the paramount concern. We conclude that hearsay is reliable for SORA purposes—and, therefore, admissible—if, based on the circumstances surrounding the development of the proof, a reasonable person would deem it trustworthy.

It is impossible to list the types of evidence that will meet this standard because the proof will vary depending on the circumstances of the case. If the District Attorney is relying on facts relating to a prior conviction that involved a trial, the sources relied on at the SORA proceeding will likely be different than would be the case if a defendant had waived indictment and pleaded guilty. A higher quality of proof may be expected where the proof relates to a criminal case that was recently adjudicated versus one that was resolved decades ago. Among the factors considered in evaluating the reliability of proffered hearsay evidence are the age of the conviction and the efforts made to locate relevant documents; whether the proof is corroborated either by the nature of the conviction or other evidence in the record; whether the declarant was under oath or was acting under a duty to accurately report, record or convey information; and whether the circumstances surrounding the making of the statement otherwise bear indicia of reliability. SORA courts must have the flexibility to make reliability determinations on a case-by-case basis.

Since accuracy is the goal, the District Attorney should proffer the best evidence available to illuminate the relevant facts, with the caveat that the Legislature did not contemplate that victims of sex crimes be compelled to appear and testify under oath at SORA proceedings. As the New Jersey Supreme Court has observed, such a requirement would undermine the practice often utilized by prosecutors of entering guilty pleas in cases involving sex crimes to avoid putting the victim through the trauma of a criminal trial (see Matter of C.A., 146 NJ 71 , 97-98, 679 A2d 1153 , 1166 [1996]).

Mingo: The District Attorney’s Office Documents

Applying this standard to the internal District Attorney’s office documents in Mingo, the evidence used to establish that defendant was armed with a dangerous instrument at the time of the rape may have constituted “reliable hearsay” but the

record is presently insufficient to determine that this is the case. It appears that the District Attorney’s inability to locate other types of proof, such as grand jury testimony, stemmed from the fact that the offense was committed almost 20 years ago. Defendant did not argue at the SORA proceeding that the District Attorney failed to undertake a diligent search for additional records or was not proffering the best available evidence.

As the People argue, internal documents generated by a prosecuting agency share similarities with case summaries and presentence reports in that all are prepared in furtherance of a governmental function. The District Attorney’s office documents may be reliable for reasons similar to the business records exception to the hearsay rule, that is “records systematically made for the conduct of a business . . . are inherently highly trustworthy because they are routine reflections of day-to-dáy operations and because the entrant’s obligation is to have them truthful and accurate for purposes of the conduct of the enterprise” (People v Rawlins, 10 NY3d 136 , 150 [2008] [internal quotation marks and citations omitted]; see People v Cratsley, 86 NY2d 81 , 88-91 [1995]). It may well be that these forms are generally produced based on information supplied by the victim, the arresting officer or some other knowledgeable witness under circumstances bearing indicia of reliability.

But the documents relied on here differ in at least one significant respect from case summaries and presentence reports. Since SORA courts are aware of how case summaries and presentence reports are prepared and, in fact, these documents are generated with knowledge that they will be submitted to and relied on by courts, foundation testimony is unnecessary to establish their admissibility. But the same is not true with respect to the unsworn, internal District Attorney’s office documents proffered in Mingo. Some explanation of how these documents were generated, the personnel who prepared them, the sources typically relied upon for the information contained therein, and the function they served is needed before they can be viewed as trustworthy. Furthermore, where the documents contain a code or shorthand not readily interpreted by the court, this should be deciphered on the record to assist the court and facilitate appellate review. For example, in a brief submitted in this Court, the District Attorney explains some of the notations appearing on the Early Case Assessment Bureau form, indicating that they reveal the sources of the information contained on the form. This type of basic information should be presented at the

SORA proceeding, either through a prehearing affirmation, an offer of proof, or by testimony from a witness with knowledge of the internal procedures of the District Attorney’s office.

We do not suggest that any formal incantation, such as the recitation typically preceding the admission of a business record under CPLR 4518, is required. Nor will it be necessary in every case for the District Attorney to call a witness to supply the requisite foundation. But, in Mingo, since the SORA court accepted the forms used by the District Attorney’s office without requiring foundation evidence of any type, the record contains no information supplying the requisite indicia of reliability. Hence, this case should be remitted to the SORA court to provide the District Attorney an opportunity to establish a foundation supporting the documents’ admissibility. Defendant remains free to rebut the District Attorney’s proffer and the SORA court will determine whether the documents are sufficiently trustworthy to constitute “reliable hearsay” based on the considerations identified above.

Balic-. The Criminal Complaint

Remittal is unnecessary in Balic since the criminal complaint was a sworn statement created by a police officer with a duty to report. Here, the record supports the conclusion that the document constituted reliable hearsay. The source of the information in the complaint is clear; the police officer indicates that he is recounting statements made by the child victim on the same day as the crime. Needless to say, a police officer is charged with the duty to accurately record statements made by a complaining witness—and nothing in this record suggests that the officer did not fulfill this command.

Defendant argues that the document is unreliable because, although the police officer was under oath, the complainant was not. Thus, defendant suggests that SORA courts can consider only sworn victim statements. We find this assertion to be inconsistent with the broad statutory language directing the court to consider “any victim’s statement” (Correction Law § 168-n [3] [emphasis added]). The Legislature’s decision not to restrict the proof to sworn statements recognizes that there are circumstances when a sworn statement of the victim is unavailable either due to the victim’s age or mental capacity, or the early resolution of the case by a waiver of indictment and guilty plea. Moreover, as these appeals demonstrate, sometimes sworn statements cannot be located due to the age of the conviction and

the unintentional loss or destruction of documents. Courts in other jurisdictions with comparable regulatory schemes have similarly determined that victim statements can be relied on even if not made under oath (see Matter of C.A., supra, 146 NJ 71 , 679 A2d 1153 [1996] [victim statements recounted in police and medical reports constituted reliable hearsay]; Doe v Sex Offender Registry Bd., 70 Mass App Ct 309 , 873 NE2d 1194 [App Ct, Suffolk 2007], review denied 450 Mass 1110 , 881 NE2d 1142 [2008] [court did not err in relying on victim statement recounted in police report]). Of course, where an unsworn statement is equivocal, inconsistent with other evidence, or seems dubious in light of other information in the record, a SORA court is free to disregard it.

But, in Balic, there is no basis to set aside the determination that the criminal complaint was sufficiently reliable to render it admissible at the risk level proceeding. Moreover, we reject defendant’s assertion that the District Attorney failed to meet the clear and convincing evidence burden of proof, particularly since defendant did not actually controvert the allegations of sexual assault by offering a contrary account of the 1985 incident and defendant’s guilty plea confirmed that defendant physically assaulted the victim, partially corroborating the information in the criminal complaint. We therefore decline to disturb Balic’s level two designation.

Accordingly, in People v Mingo, the order of the Appellate Division should be reversed, without costs, and the case remitted to Supreme Court for proceedings not inconsistent with this opinion; in People v Balic, the order of the Appellate Division should be affirmed, without costs.

Judges Ciparick, Read, Smith, Pigott and Jones concur; Chief Judge Lippman taking no part.

In People v Mingo: Order reversed, without costs, and case remitted to Supreme Court, Kings County, for further proceedings in accordance with the opinion herein.

In People v Balic-. Order affirmed, without costs.