Issue before the Court: Whether the judge, at a sex offender registration hearing [SORA] following defendant’s conviction of misdemeanor sexual abuse, erred in finding that the defendant engaged in sexual intercourse or “deviate sexual intercourse” despite the defendant’s trial acquittal of charges relating to this more serious alleged conduct.

 

Held: No. “His acquittal of such charges at his criminal trial does not foreclose the hearing court from finding, by clear and convincing evidence, that he engaged in such acts.” Additionally, the Court of Appeals held that the record, in this case, supported “the affirmed finding that defendant engaged in sexual intercourse, deviate sexual intercourse or aggravated sexual abuse.”

 

CAL Observes:

 

Note: This is a brief memorandum decision made on summary review. The Court cited to a prior case holding that an acquittal of criminal charges is not the equivalent of a finding of innocence, Reed v. State of New York, 78 N.Y. 2d 1 (1991), and acknowledged the different burdens of proof at trial and at the SORA hearing.  People v.  Headley, 147 A.D.3d 988 (2nd Dept. 2017).  The Court, however, did not discuss the evidence in this case or explain how the prosecution had met its burden of proof at the SORA hearing.

 

In her detailed dissent, Judge Rivera agreed that “there may be cases in which there is clear and convincing evidence of the defendant’s sexual acts notwithstanding acquittal of the underlying charges,” 31 N.Y.3d at 1026, but believed that “this is not such a case.” Id. Stressing “the exacting nature” of the clear and convincing evidence standard, the judge went on to analyze the weaknesses in the prosecution’s case to support her dissenting vote.

 

Judge Rivera did not convince her colleagues in this case that the evidence was flawed. After all, her dissent reveals that the prosecution did not rest solely on the child complainant’s credibility. There was also evidence of prompt outcry to a brother and, even more significantly, the defendant admitted to the police that he had “perform[ed] oral sex” on the complainant. Moreover, the same judge heard the evidence at trial and sat at the SORA hearing. Similarly, in Headley, on which the majority relied, the defendant had admitted guilt to the Probation Department despite the jury’s partial acquittal.

 

On a different record, however, the defendant might prevail. Advocates at SORA hearing should continue to review the trial record carefully for signs of weakness that prevent the prosecution from meeting the clear-and-convincing standard.  The jury’s acquittal is particularly persuasive when the SORA judge did not preside at trial and, therefore, has no independent impression of the evidence.