Jenny From The Court

Ever watch a panel discussion where the range of views runs from bad to worse, a fast death to brutal slow death, as if it reflected the full gamut of thought on a subject, as long as you prefer your gamuts to invariably lead to the only possible acceptable outcome?

What if that was the case on New York’s oddly-named highest court, the Court of Appeals? Appellate Squawk is not amused.

Apropos of #MeToo, the Court of Appeals has finally eliminated all that silly frou-fra about proof and decided that in SORA hearings, accusations alone are clear and convincing evidence. According to the majority, if it’s on a piece of paper from a law enforcement agency, that’s good enough.

That turns SORA hearings into a farce, scolds Progressive Judge Jenny Rivera in a dissent nobody seems to have read to the end of. You need reliable evidence. Like victims’ statements.  Say what? Yes, victims’ statements. Uncorroborated, never cross-examined, never the subject of a conviction. That’s what she calls reliable?

On the one side, progressive governor and Mario’s smarter son, Andy Cuomo, named former Westchester County District Attorney (the office previously held by noted legal scholar, Jeanine Pirro) Janet DiFiore to be Chief Judge of the Court of Appeals, the post formerly held by actual liberal Jonathan Lippman. No one would expect Judge DiFiore to be particularly concerned about a defendant being held as a Level 2 sex offender based on a sentence in a report.

That finding was based on information in the Presentence Investigation (PSI) report prepared in connection with the offense stating that “[o]n one or more occasions, he used physical force to coerce the victim into cooperation,” information also included in the case summary prepared by the Board of Examiners of Sex Offenders. Defendant argues that this evidence was insufficient to supply evidence of use of violence because it constituted hearsay and did not more specifically describe his conduct. We disagree.

The court, in a memorandum opinion, disagrees? Cue Capt. Renault.

SORA adjudications, by design, are typically based on documentary evidence under
the statute’s “reliable hearsay” standard.

And what, you may wonder, makes this hearsay “reliable?

PSI reports are prepared by probation officers who investigate the circumstances surrounding the commission of the offense, defendant’s record of delinquency or criminality, family situation and social, employment, economic, educational and personal history, analyzing that data to provide a sentencing recommendation (see CPL 390.30[1]).

Not to knock PO’s, who generally do a decent job under difficult circumstances, but they ain’t all that either. And as the court notes, the defendant is entitled to dispute the PSI.

However, the statement’s accuracy was never disputed, nor did the courts below err in rejecting defendant’s claim that the evidence must be discounted because the acts of force were not described in greater detail.

For the unwary, this may appear to mean that the defendant’s complaint is unwarranted because he never challenged the accuracy of the statement, but this is the sort of hidden game played by appellate courts, where the sentence disproves itself. He did challenge it, which is how the courts below rejected his challenge. That the statement was purely conclusory, lacking any details to dispute specifically, was the only challenge possible.

So with the wave of a hand, the challenge of the conclusory statement disappears, the court sleeps well that night, crediting “reliable hearsay,” never again worrying about this defendant who committed the very awful crime. Except for the dissent by the empathetic progressive conscience of the court: RIVERA, J. (dissenting) .

The People argue that under People v Mingo (12 NY3d 563, 571-573 [2009]), we should accept this one-sentence assertion at face value as “reliable hearsay,” but doing so extends Mingo beyond the analytic boundaries of its holding, absolves the People of their burden of persuasion, and renders the SORA proceeding a farce. I would reverse, clarifying that a conclusory statement in the PSI that otherwise lacks record support, standing alone, is not clear and convincing evidence of the fact asserted.

Yassss, Kween. Slay!

It is undisputed that the PSI and Case Summary statement constituted the entirety of the evidence the SORA court considered in arriving at its conclusion that defendant should be assessed ten points for forcible compulsion. It is also undisputed that the record is totally bereft of any evidence supporting or disclosing the source of the assertion. There are no documents in the SORA hearing record that would typically provide the basis for such assertion—no victim statement, no grand jury transcripts, and no plea colloquy admitting defendant’s use of force, nor for that matter any other statement by defendant.

How does one possibly dispute a record “totally bereft of any evidence”? So what would it take to provide the defendant with sufficient due process to challenge this baseless conclusion?

Although the Assistant District Attorney argued to County Court that it would be difficult, as a general matter, to get a victim statement or grand jury testimony in cases involving children, she made no express showing that in this case—which involved a teenage victim—there were
insurmountable obstacles to securing a victim statement when the PSI was drafted, or almost ten years later when the Case Summary was prepared, or in advance of the SORA proceeding. Nor is there sense to the Assistant District Attorney’s argument that grand jury minutes are sealed and she did not know how to “get around that.”

Wait, what? If the victim said so, that would be good enough? If she said so in the grand jury, that would be good enough? So a baseless conclusory assertion in a PSI is completely inadequate, but had the words come from a victim’s mouth, they would be indisputable gospel?

Et tu, Jenny.

Yerp. Jenny too, Squawk.

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