JEWELL, THOMAS W., PEOPLE v ( 2014 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
796
KA 13-01805
PRESENT: SMITH, J.P., CENTRA, CARNI, VALENTINO, AND WHALEN, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
THOMAS W. JEWELL, DEFENDANT-APPELLANT.
CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT-APPELLANT.
JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (CARL J. ROSENKRANZ OF
COUNSEL), FOR RESPONDENT.
Appeal from an order of the Cayuga County Court (Mark H.
Fandrich, A.J.), entered June 14, 2013. The order, among other
things, determined that defendant is a level three risk pursuant to
the Sex Offender Registration Act.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Defendant appeals from an order determining that he
is a level three risk pursuant to the Sex Offender Registration Act
([SORA] Correction Law § 168 et seq.). As a preliminary matter, we
note that defendant did not preserve for our review his contention
that County Court improperly considered the grand jury testimony of
the victim and the presentence report because he failed to object at
the hearing to the court’s consideration of those materials, despite
the court’s explicit reliance thereon. In any event, it is well
settled that a court may consider reliable hearsay, including grand
jury testimony and presentence reports (see People v Mingo, 12 NY3d
563, 572-573; People v Perrah, 99 AD3d 1257, 1257-1258, lv denied 20
NY3d 854). Moreover, no foundation testimony or evidence is required
with respect to a presentence report or grand jury minutes (see Mingo,
12 NY3d at 573). We further conclude that the victim’s grand jury
testimony was the type of “victim[] statement” that the court is
required to consider in making its determination whether offered by
either of the parties or not (Correction Law § 168-n [3]; People v
Law, 94 AD3d 1561, 1563, lv denied 19 NY3d 809). We also conclude
that, inasmuch as the court presided over defendant’s criminal
proceeding, the presentence report and the grand jury minutes were
part of the court’s official file, and the court “was empowered to
contemplate facts” elicited during that previous proceeding (People v
Fredenberg, 27 AD3d 970, 970; see § 168-n [3]).
We reject defendant’s contention that the court failed to make
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KA 13-01805
adequate written findings of fact supporting its determination that
defendant is a level three risk. Here, “the court’s ‘oral findings
are supported by the record and sufficiently detailed to permit
intelligent review; thus, remittal is not required despite defendant’s
accurate assertion regarding the court’s failure to render a[ written]
order setting forth the findings of fact . . . upon which its
determination is based’ ” (People v Gosek, 98 AD3d 1309, 1310).
Contrary to defendant’s contention, the court did not err in
assessing 25 points under risk factor 2 in the risk assessment
instrument, for sexual contact with the victim, despite the fact that
defendant pleaded guilty to two counts of attempted criminal sexual
act in the second degree (Penal Law §§ 110.00, 130.45). “In assessing
defendant’s risk level . . . the court is ‘not limited to the crime of
conviction’ ” (People v Hubel, 70 AD3d 1492, 1493; see Sex Offender
Registration Act: Risk Assessment Guidelines and Commentary, at 5
[2006]). Here, the People met their burden of establishing by clear
and convincing evidence, including reliable hearsay evidence such as
the victim’s grand jury testimony, the case summary, and the
presentence investigation report, that defendant engaged in oral
sexual conduct with the victim (see Hubel, 70 AD3d at 1493; see
generally Mingo, 12 NY3d at 572-573). We also reject defendant’s
contention that the court erred in assessing 20 points under risk
factor 4, for continuing course of sexual misconduct. Again, contrary
to defendant’s contention, “[t]he court is ‘not limited to the crime
of conviction’ in assessing points for that risk factor” (People v
Slotman, 112 AD3d 1332, 1333; see Risk Assessment Guidelines and
Commentary, at 5). The reliable hearsay evidence presented by the
People established that defendant engaged in two or more acts of
sexual contact with the victim, at least one of which was an act of
oral sexual contact, which were separated in time by at least 24 hours
(see Risk Assessment Guidelines and Commentary, at 10). Contrary to
defendant’s further contention, the court properly assessed 10 points
under risk factor 12, for failing to genuinely accept responsibility.
The People established that defendant blamed the victim, “ ‘minimized
the underlying sexual offense[,] and . . . denied that he performed
the criminal sexual act [that] formed the basis for the conviction’
during an interview with the Probation Department” (People v Wilson,
117 AD3d 1557, 1557; see People v Baker, 57 AD3d 1472, 1473, lv denied
12 NY3d 706). We thus conclude that “the People established by clear
and convincing evidence that defendant ‘fail[ed] to genuinely accept
responsibility for his conduct as required by the risk assessment
guidelines’ ” (Wilson, 117 AD3d at 1557).
Defendant’s constitutional challenge to the court’s assessment of
15 points under risk factor 14, for being released without official
supervision, is not properly before us because there is no indication
in the record that the Attorney General was given the requisite notice
(see Executive Law § 71). In any event, it is well established that
“a SORA risk-level determination is not part of a defendant’s sentence
. . . Rather, it is a collateral consequence of a conviction for a sex
offense designed not to punish, but . . . to protect the public”
(People v Windham, 10 NY3d 801, 802).
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KA 13-01805
Finally, contrary to defendant’s contention, the remoteness of
his prior felony conviction is adequately taken into account by the
risk assessment instrument and therefore is not, as a matter of law, a
mitigating factor to be considered by the court in departing from the
presumptive risk level (see People v Wyatt, 89 AD3d 112, 130-131, lv
denied 18 NY3d 803).
Entered: July 11, 2014 Frances E. Cafarell
Clerk of the Court