In People v. Britton , decided by the Court of Appeals last month, a teenager testified that when she was 11 years old she had sexual intercourse with her uncle during a visit to her grandmother. Her uncle and grandmother testified that no such thing had occurred. The People presented an expert to explain why the girl showed no physical signs of having had sexual intercourse and another expert to explain why she waited so long before saying anything. The jury nevertheless rejected her story and acquitted the uncle of the felony charges. But in an apparent "something-must-have-happened" compromise, they returned a guilty verdict of the misdemeanor of mouth-to-breast contact. Because even a misdemeanor conviction for a sex offense automatically puts a person under the Sex Offender Registration Act (SORA), the court held a hearing to decide whether Quinn Britton presented a low, moderate or high risk of re-offending. The procedure is to add up points from a list of factors, such as the person's criminal history and whether the offense involved intercourse. The greater the number of points, the higher the risk level. A person adjudicated as a moderate or high risk must register as a sex offender for the rest of his life, with his photograph, address and other personal information made publicly available on the Internet Sex Offender Registry. Given the dire lifetime consequences of being publicly labeled a sex offender, the SORA statute requires the People to prove the facts underlying the risk level adjudication by clear and convincing evidence. A correct point assessment based on Britton's misdemeanor conviction and lack of criminal history would have put him at the lowest risk level. The People argued, however, that he should be scored additional points for the offenses of which he was acquitted , thereby elevating his classification from low to moderate and putting him on the Internet Sex Offender Registry for life. Although the only evidence that sexual intercourse occurred was testimony expressly rejected by the jury, the Appellate Division held that it met the clear and convincing standard. The court further opined that the complainant's grand jury testimony was also "sufficient for SORA purposes," citing People v. Mingo , 12 NY3d 563 (2012) in support. People v. Britton , 148 AD3d 1064 (2 nd Dept. 2017). People v. Britton Reed v. State of New York, |

Judge Rivera Dissents

Judge Jenny Rivera dissented, calling this argument "a red herring." She noted that testimony that a jury has found to be not credible cannot by definition constitute clear and convincing evidence of the truth of the allegations. Although the clear and convincing standard is lower than "beyond a reasonable doubt," it is not " de minimis ," as the People claimed, but rather, "a heavy burden of proof and persuasion." It is the high standard required by due process in civil cases where the state seeks to deprive an individual of important personal liberty interests. It is more rigorous than the "preponderance of the evidence" standard used in typical civil cases involving monetary disputes between private parties. To be clear and convincing, the evidence must create "a firm belief or conviction of the truth of the allegations" by being "so clear, direct and weighty and convincing as to enable [the fact- finder ] to come to a clear conviction without hesitancy, of the truth of the precise facts at issue." People v. Britton, supra (Rivera, J., dissenting), citing Cruzan v. Missouri Dep't of Health , 497 US 261, 285 n. 11 (1990). When a statute requires proof by clear and convincing evidence, this represents a legislative determination that "the individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than harm to the state." Addington v. Texas, 441 US 418 (1979). By requiring the same standard of proof in SORA adjudications as in civil commitment, deportation, denaturalization and life support termination proceedings, the legislature implicitly recognized the gravity of the liberty interests at stake. "Therefore," said Judge Rivera, "the People cannot seek to elide this legislatively imposed demanding burden." |

'Reed v. State of New York' Is Not on Point

Reed v. State of New York, relied on by the majority, is not on point. Reed involved a claim for damages for wrongful conviction where the plaintiff had to show by clear and convincing evidence that she did not commit the charged acts. The court held that the reversal of her conviction for legal insufficiency was not proof of innocence. Reed, supra. In a SORA hearing, by contrast, it is the People who must prove that the defendant did commit the acts. Where the proof consisted only of testimony rejected by the jury, it failed by definition to enable the fact finder "to come to a clear conviction without hesitancy, of the truth of the precise facts at issue." It is deeply troubling that the Court of Appeals has upheld the inflating of a person's risk level based on discredited testimony. It is perhaps even more disturbing—because it involves a more common scenario—that by affirming the lower court decision, the court has implicitly endorsed the notion that grand jury testimony is clear and convincing evidence. This allows the People to continue their practice of inducing a guilty plea to a single count of an indictment in exchange for dismissing the others; and then proffering grand jury testimony at the SORA hearing as clear and convincing evidence of the truth of the dismissed counts. This is unlawful and unfair. It is firmly established that grand jury testimony is presumptively inadmissible in civil cases unless expressly authorized by statute. The pPeople, like any other civil litigant, may not use it without first obtaining a court order based on a specific showing of "compelling and particularized need." It is not enough merely to assert "public interest." Matter of Suffolk County District Attorney , 58 NY2d 436 (1983). |

Use of Grand Jury Testimony Not Authorized

The SORA statute nowhere authorizes the use of grand jury testimony. Yet, the pPeople freely use it without bothering to seek a court order, let alone making the requisite showing . The Court of Appeals has never granted leave to address this issue, despite repeated urging from defense attorneys. Nor has any court attempted to explain how an accuser's grand jury testimony, which proves nothing more than probable cause to hale a defendant into court, is magically transformed into clear and convincing evidence in SORA hearings. Grand jury testimony has long been recognized as inherently unreliable, notwithstanding that it is made under oath. It is elicited by leading questions under relaxed evidentiary standards from a biased witness and never subjected to cross-examination. People v. Geraci , 85 NY2d 359 (1995). It remains an inconvenient truth that accusations of sexual misconduct are "easily to be made and hard to be proved, and harder to be defended by the party accused, tho' never so innocent." People v. Taylor , 75 NY2d 277 (1990) (citing a 17 th Century jurist). There is no principled reason to presume that untested, uncorroborated accusations are reliable, let alone clear and convincing evidence. The Appellate Division has misread Mingo as holding that grand jury testimony is admissible and "sufficient" in SORA cases. The passing remark in Mingo that lower courts have found grand jury testimony "sufficiently trustworthy" to "justify receipt" in SORA hearings is pure dicta. Grand jury testimony was not involved in that case. The difference between a holding and dicta is not some minor technicality. Because grand jury testimony was not at issue, Mingo considered neither its presumptive inadmissibility or unreliability. It did not even mention Suffolk County , let alone purport to overrule its unequivocal holding. Nor did Mingo say, even in dicta, that grand jury testimony constitutes clear and convincing evidence of the truth of dismissed charges. Unlike many jurisdictions that simply correlate sex offenders' future risk level to the offense of conviction, New York requires an individualized judicial determination. As Rivera stated, the SORA statute holds the pPeople "to the high clear and convincing evidence burden for the very reason that a defendant's liberty interest is at stake and the risk level determination has severe consequences." But a judicial determination is meaningless if courts jettison basic evidentiary principles. Lorca Morello has been an appellate attorney for more than 20 years and has litigated SORA hearings.