The opinion of the court was delivered by: Graffeo, J.
This opinion is uncorrected and subject to revision before publication in the New York Reports.
In these appeals, we address what constitutes "reliable hearsay" that is admissible for purposes of determining the appropriate risk level of a sex offender under the Sex Offender Registration Act (SORA). In People v Mingo, we conclude that, with the proper foundation, internal documents generated by the District Attorney's office may support a risk level adjudication but, since Supreme Court did not require such a foundation, we reverse and remit to afford the District Attorney's office an opportunity to supply that proof. We affirm the determination in People v Balic because the Appellate Division did not err in designating defendant a level two risk based on a victim's statement included in a criminal court complaint prepared by a police officer under oath.
In 1990, defendant Tyrone Mingo pleaded guilty to rape in the first degree in satisfaction of a series of charges relating to a 1988 incident in which he pulled a stranger into an abandoned van and raped her. The victim managed to escape and flag down a passing police officer and defendant was arrested at the scene. At a SORA redetermination hearing in February 2006,*fn1 defendant was adjudicated a level two risk -- that is, a moderate risk of re-offense -- based, in part, on the assessment of 30 points under factor one of the Risk Assessment Instrument (RAI) for having been armed with a dangerous instrument at the time of the rape.*fn2 To establish defendant's possession of a dangerous instrument, the District Attorney relied on three documents that are apparently used internally by the District Attorney's office: a Data Analysis Form, a Grand Jury Synopsis Sheet and an Early Case Assessment Bureau Data Sheet.*fn3 Various entries on these forms indicated that, in the course of the incident, defendant had threatened the victim with a "chrome strip" or "piece of metal" -- a dangerous instrument.
Defense counsel objected to the District Attorney's reliance on these unsworn, unsigned documents, contending they did not constitute "reliable hearsay" under Correction Law § 168-n(3) and were therefore inadmissible at the SORA proceeding. Defendant did not, however, testify at the hearing, nor did he offer any evidence rebutting the dangerous instrument allegations. Without requiring the People to offer foundation evidence, Supreme Court relied on the documents, along with the indictment charging defendant with a weapon possession offense, to sustain the assessment of 30 points. This brought defendant within the moderate risk category (75 to 105 points) and the court therefore adjudicated defendant a level two offender. Absent the assessment of 30 points, defendant would have fallen within the presumptive level one, low risk category.
A divided Appellate Division affirmed the level two designation, concurring with Supreme Court that the internal documents of the District Attorney's office constituted reliable hearsay admissible at a SORA proceeding. The dissent did not rule out the possibility that the documents could support a point assessment but was troubled by the District Attorney's failure to lay a foundation to support the inference that the victim was the source of the information contained in the documents. Thus, the dissent would have reversed and remitted the case to the SORA court for further proceedings. This Court granted defendant leave to appeal and, like the Appellate Division dissenter, we conclude that a reversal and remittal is warranted.
Dzemil Balic pleaded guilty to sexual abuse in the first degree based on a 2004 incident in which he forcibly fondled the breasts and buttocks of a woman who attended classes in a building where he worked as a custodian. In the RAI prepared for the SORA proceeding, the District Attorney assessed defendant 40 points under the prior convictions section as a result of a 1985 misdemeanor assault conviction that occurred when defendant was 19 years old. The People imposed 10 points for factor eight since defendant's age at the time of that offense was 20 years or less and 30 points for factor nine because it viewed the 1985 crime as a prior "sex crime." Absent the inclusion of these points, defendant's point assessment would have resulted in presumptive level one, the low risk category.
Since the elements of misdemeanor assault do not require conduct of a sexual nature (see Penal Law § 120.00), at the SORA hearing the District Attorney relied on the criminal complaint filed in connection with the prior 1985 prosecution, which had culminated in defendant entering a guilty plea. The criminal complaint was signed under oath by a police officer who stated that, on the day of the crime, the victim -- a 14-year-old girl identified by name -- told the officer that defendant had forcibly fondled her, attempted to remove her clothes, and threatened that he would shoot her unless she did as he said. The People had attempted to locate other information regarding the 1985 assault, twice obtaining an adjournment to search for additional evidence, but discovered that all other relevant documents had been destroyed by fire or flood.
Defense counsel objected to the assessment of 40 points, arguing that the references to "sexual misconduct" and "sex crime" in factors eight and nine required that defendant have a prior conviction of one of the sex offenses enumerated in SORA and misdemeanor assault did not qualify. In the alternative, defendant asserted that the criminal complaint was insufficient proof that the assault involved acts of a sexual nature. Supreme Court rejected both arguments, adjudicating defendant a level two offender. The court noted that, even if it credited defendant's argument that the provisions relied on in the criminal history section of the RAI required a prior sex offense conviction and the point values therefore rendered defendant a presumptive level one risk, an upward departure to level two would be appropriate given the sexual nature of the 1985 attack.
On defendant's appeal, the People conceded that it had been improper to assess 40 points for defendant's 1985 misdemeanor assault offense, acknowledging that the SORA Guidelines indicate points should be assessed under the factors relied on only when a defendant has been convicted of a prior sex offense or endangering the welfare of a child. Defendant should instead have received only 5 points under factor nine for having prior criminal convictions that were neither sex crimes nor felonies. Even though the disallowance of 35 points brought defendant within the presumptive level one range under the RAI, the District Attorney maintained that the level two designation should be affirmed because an upward modification was appropriate given the nature of the conduct underlying defendant's 1985 conviction. The Appellate Division agreed with the District Attorney, reasoning that the RAI did not take into account defendant's prior violent sexual attack on a child, and we now affirm.
SORA Risk Level Determinations
SORA requires individuals convicted of sex offenses to register with law enforcement officials and authorizes the dissemination of certain information about those individuals to vulnerable populations and the public. The length of time that an offender must register may turn on the crime for which the offender was convicted or the offender's previous criminal history. For example, since 2002, SORA has compelled a defendant convicted of a "sexually violent offense" to register at least annually for life (Corr. Law § 168-h; see Corr. Law § 168-a[a], [b]; L 2002, ch 11, § 13).*fn4 The same is true of a predicate sex offender -- a person who is convicted of a sex offense or sexually violent offense after having previously been convicted of such an offense (Corr. Law § 168-a[c]; Corr. Law § 168-h). But for others, the registration period depends on the risk level designation that is assigned at the SORA proceeding -- level one, evidencing a low risk of re-offense, level two, a moderate risk, and level three, a high risk. Individuals determined to have the lowest risk of re-offense --level one offenders -- are relieved of the duty to register after 20 years while level two and three offenders must register at least once each year for life (Corr. Law § 168-h).*fn5
SORA also contains community notification and disclosure provisions that vary depending on risk level designation. As a result of the 2006 amendments to SORA, law enforcement agencies can disseminate information relating to level one offenders to vulnerable populations and the public --just as they are authorized to do with level two and three offenders, except that the statute authorizes release of exact addresses only for level three offenders (see Corr. Law § 168-l). The public can obtain information about level one offenders by calling a toll-free telephone number maintained by the Department of Correctional Services ...