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Ruling on two key issues under the New York version of Megan’s Law, a Bronx Supreme Court Justice has said that grand jury testimony may be considered in a risk assessment hearing for a convicted sex offender. She also said there is no time limitation on the use of prior convictions in the assessment. Acting Justice Ruth Levine Sussman said that grand jury testimony has probative value, is admissible in some trial settings, and is “reliable hearsay” of a kind that has previously been admitted in Megan’s Law assessments. On the issue of prior convictions, the justice added that the New York Sex Offender Registration Act contains no time limitation on the use of prior offenses in assessing risk. Therefore, the courts have discretion to decide if a past offense remains relevant, whether or not it is more than a decade old. In People v. Victor R., 5628/98, a defendant was assessed as “Risk Level Three” under Megan’s Law. Under the New York statute, more stringent reporting requirements are imposed on those who are judged more likely to commit a repeat offense. Risk Level Three connotes a “sexually violent predator” and requires the highest level of notification under the Sex Offender Registration Act. The defendant, identified in the opinion only as “Victor R.,” had pleaded guilty to a single count of attempted sodomy in the second degree. However, he had been charged by the grand jury with first-degree rape, among other offenses. The victims were two girls, ages 14 and 13, who were the daughters of Victor R.’s girlfriend, and whom Victor R. regarded as “stepdaughters.” The defendant said the “Risk Level Three” assessment was inappropriate, given the charges to which he had pleaded guilty. Victor R. asked Sussman to exclude from evidence the minutes of grand jury testimony underlying the rape charges. The question before Sussman was whether she could take into account the full range of actions allegedly undertaken by Victor R. in the case, or only the acts admitted by the defendant in his plea allocution. Sussman reasoned that to force the complaining witnesses to recount the full extent of the defendant’s conduct at the Megan’s Law hearing would frustrate one motivation for district attorneys to accept guilty pleas on reduced charges: to avoid stress to witnesses. It would also allow defendants to “attempt to avoid an admission of the full extent of conduct leading to … conviction,” Sussman said. Requiring live testimony from the victims would also shift the Board’s inquiry from an assessment of the defendant’s risk of recidivism to a new inquiry focused on guilt or innocence, Sussman said. The better approach, Sussman said, would be to allow the Board of Examiners under the Sex Offender Registration Act to rely upon the grand jury minutes, even though they are hearsay. The court said that such evidence is “undeniably probative,” and that grand jury testimony has even been used at trial, under limited circumstances, when a witness is unavailable to testify or to impeach a witness. Most importantly, prior cases involving Megan’s Law have allowed “reliable hearsay evidence” in risk assessment hearings, Sussman observed. “Under the circumstances of a SORA risk assessment proceeding, the court finds that compelling considerations favor the admission of the victim’s grand jury testimony and evidence to establish the commission and extent of multiple sexual crimes,” Sussman said. In another first impression holding, Sussman said that the legislature did not enact a time limitation on the use of prior violent criminal offenses and that courts could consider them, no matter how old. In Victor R.’s case, Sussman allowed the consideration of a 13-year-old conviction for attempted robbery in the second degree. “Since the legislature has not hesitated to explicitly impose a time limitation on the use of prior felony convictions in other contexts, such as the 10-year time limitation for the purpose of enhanced punishment, the failure to impose a limitation in this context suggests that the matter is left entirely to the considered discretion of the court,” she wrote. Sussman allowed that some crimes may be so old as to lack relevance in a risk assessment. But there is no bright-line rule for the exclusion of old crimes, so the court’s touchstone should be the continuing relevance of the prior crime in a fair assessment of present-day risk.

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