Opinion
01-22-2015
The PEOPLE of the State of New York, Respondent, v. John M. TUBBS, Appellant.
Teresa C. Mulliken, Harpersfield, for appellant. Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), for respondent.
Teresa C. Mulliken, Harpersfield, for appellant.
Richard D. Northrup Jr., District Attorney, Delhi (John L. Hubbard of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, GARRY, ROSE and EGAN JR., JJ.
GARRY, J. Appeal from an order of the County Court of Delaware County (Lambert, J.), entered February 26, 2013, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.
Defendant pleaded guilty to attempted criminal sexual act in the second degree and was sentenced pursuant to the agreement to a prison term of 1 ½ years and 10 years of postrelease supervision. Thereafter, the Board of Examiners of Sex Offenders submitted a risk assessment instrument and case summary to County Court pursuant to the Sex Offender Registration Act (see Correction Law art. 6–C [hereinafter SORA] ) that presumptively classified defendant as a risk level III sex offender, with no departure recommended. In the course of a brief hearing, County Court subtracted points assessed under one of the factors and added points for another, ultimately also resulting in a risk level III classification. Defendant appeals.
First considering the specific risk factors challenged upon appeal, we find that County Court's addition of 20 points under risk factor 3 for two victims was not supported by the requisite standard of clear and convincing evidence (see Correction Law § 168–n[3] ; People v. Bateman, 59 A.D.3d 788, 789, 872 N.Y.S.2d 748 [2009] ). The court assessed these points based upon the People's assertion that defendant had been charged with crimes involving two victims. Defendant argues that his underlying guilty plea involved only one victim. It is well established, and the court properly held, that determining the number of victims for purposes of SORA is not limited to the crime of conviction, but may be based upon other reliable sources, specifically including a defendant's admissions (see People v. Callan, 62 A.D.3d 1218, 1219, 881 N.Y.S.2d 510 [2009] ; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 5 [2006] ). Here, the preplea investigation report included defendant's admission that, at an unspecified time several years earlier, he had approached another potential victim requesting that she engage in a sexual act. However, the admission is quite limited, as defendant also stated that this potential victim refused his request, and that nothing further occurred. There is no evidence of any nature that could support a finding of any sexual conduct or contact with a second victim (see Penal Law § 130.00[3], [10] ). The People failed to supplement defendant's limited admission with any proof whatsoever from the alleged second victim (compare People v. Radage, 98 A.D.3d 1194, 1194, 951 N.Y.S.2d 584 [2012], lv. denied 20 N.Y.3d 855, 2012 WL 6581625 [2012] ; People v. Ramirez, 53 A.D.3d 990, 990, 863 N.Y.S.2d 114 [2008], lv. denied 11 N.Y.3d 710, 868 N.Y.S.2d 602, 897 N.E.2d 1087 [2008] ). Thus, the record does not contain clear and convincing evidence supporting the court's determination as to a second victim, and 20 points should not have been scored.
The time periods referenced in defendant's admission are inconsistent with the indictment, which did not charge defendant with any crimes occurring before 2011.
Defendant was correctly assessed 10 points on risk factor 8 for being under the age of 20 when he committed his first act of sexual misconduct, as—contrary to his contention—the current offense is properly included in this determination (see People v. Filkins, 107 A.D.3d 1069, 1070, 968 N.Y.S.2d 621 [2013] ; Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 13). As for risk factor 12, defendant was correctly assessed 10 points for failing to accept responsibility. Initially, upon his arrest and interview with the Probation Department, defendant admitted that he had repeatedly molested the victim and had approached the second individual with a sexual request. However, he later repudiated these statements, claiming that the accusations were false and that he had pleaded guilty only because his former defense counsel had advised him to do so. These later statements constituted clear and convincing evidence that he failed to accept responsibility for his conduct (see People v. Shackelton, 117 A.D.3d 1283, 1284, 985 N.Y.S.2d 765 [2014] ; People v. Carman, 33 A.D.3d 1145, 1146, 822 N.Y.S.2d 819 [2006] ).
Defendant's claim that the manner in which the hearing was conducted violated his due process rights was unpreserved; in any event, the requisite standards were met (see People v. Brooks, 308 A.D.2d 99, 103, 763 N.Y.S.2d 86 [2003], lv. denied 1 N.Y.3d 502, 775 N.Y.S.2d 240, 807 N.E.2d 290 [2003] ; Doe v. Pataki, 3 F.Supp.2d 456, 471–472 [S.D.N.Y.1998] ). Defendant's argument that County Court failed to consider mitigating evidence that would have warranted a lower risk level was also unpreserved. We note that the modification required by our finding above requires a change in assessment from 120 points, with a corresponding risk level III designation, to an assessment of 100 points, with a corresponding risk level II designation.
ORDERED that the order is reversed, on the law, without costs, and defendant is classified as a risk level II sex offender under the Sex Offender Registration Act.
PETERS, P.J., LAHTINEN, ROSE and EGAN JR., JJ., concur.