In papers dated December 17, 2013, defendant, through his attorney Richard Joselson, of The Legal Aid Society, moves to dismiss the sex offender risk level assessment (hereinafter "SORA") proceeding on the ground that the 2003 Virginia misdemeanor sexual battery offense of which he was convicted is not equivalent to any New York State offense for which SORA registration is required. On January 8, 2014, the People filed an affirmation in opposition. On January 28, 2014, defendant filed a reply affirmation.

According to the case summary prepared by the State of New York Board of Examiners of Sex Offenders (hereinafter "BOE"), defendant, who was 27 years old, approached the victim, who was 17 years old, and told her that he was interested in her friend. The victim knew defendant from "outside" and they had talked a few times outside near her house. See Case Summary. On April 30, 2003, defendant told the victim that he needed to talk to her. The victim told defendant to go to her house after her parents left. When defendant arrived at the victim's house, he told her that he was really interested in her. Defendant started kissing her and giving her hickeys. The victim told him to stop. Defendant then laid on top of her. He grabbed her breasts, butt and vagina through her clothes. After defendant got up, the victim walked over to the window. Thereafter, defendant left the victim's house. The incident occurred in Virginia. On May 1, 2003, the victim's father filed a report with Virginia's Chesapeake Police Department.

On July 17, 2003, defendant pleaded guilty to sexual battery (Virginia Code Ann. §18.2-67.4) and indecent exposure (Virginia Code Ann. §18.2-387). Defendant was sentenced to a suspended term of 12 months incarceration. According to the case summary, defendant is required to register as a sex offender in Virginia for the misdemeanor sexual battery conviction. Since defendant is currently residing in The Bronx, the BOE asserts that he is required to register as a sex offender in [*2]New York.

Correction Law §168-a(2)(d)(i) states that a person must register as a sex offender in New York when that person has a conviction of "an offense in any jurisdiction which includes all of the essential elements" of any New York Penal Law offense which requires sex offender registration. When the BOE finds that the two offenses cover the same conduct, the analysis need proceed no further for it will be evident that the foreign conviction is the equivalent of the registrable New York offense for SORA purposes. Matter of North v. Bd. of Examiners of Sex Off. Of State of NY, 8 NY3d 745, 753 (2007). In circumstances where the offenses overlap but the foreign offense also criminalizes conduct not covered under the New York offense, the BOE must review the conduct underlying the foreign conviction to determine if that conduct is, in fact, within the scope of the New York offense. If it is, the foreign conviction is a registrable offense under SORA's essential elements test. Id.

Defendant contends that the Virginia misdemeanor sexual battery offense to which he pleaded guilty is broader than any New York crime for which registration is required. Defendant asserts that his Virginia conviction does not share "all the essential elements" of a New York SORA crime for two reasons (defendant's memorandum of law, p. 2). First, defendant contends that the Virginia offense, as defined by Virginia Code Ann. §18.2-67.4, criminalizes conduct accomplished by means of a "ruse."

Virginia Code Annotated §18.2-67.4 states, in relevant part, that "[a]n accused is guilty of sexual battery if he sexually abuses, as defined in § 18.2-67.10, (i) the complaining witness against the will of the complaining witness, by force, threat, intimidation, or ruse . . . ." Virginia Code Annotated § 18.2-67.10(6) defines sexual abuse as "an act committed with the intent to sexually molest, arouse, or gratify any person, where: (a) The accused intentionally touches the complaining witness's intimate parts or material directly covering such intimate parts . . . ." Defendant contends that no New York SORA offense criminalizes conduct accomplished through the use of a ruse.

Second, defendant claims that, under Virginia law, "sexual abuse" occurs not only when an offender acts with an intent to gratify the sexual desires of either party, but also when other intents are present. Virginia Code Ann. § 18.2-67.10(6). Defendant asserts that, in New York, however, "sexual contact," the corresponding term, occurs only when the contact at issue is for the purpose of "gratifying the sexual desire of either party." Penal Law § 130.00(3). Defendant moves to dismiss the SORA proceeding because he contends that the Virginia offense of which he was convicted is not equivalent to any New York offense for which SORA registration is required.

In opposing defendant's motion, the People contend that defendant's Virginia conviction is equivalent to second-degree sexual abuse (Penal Law §130.60[1]), which is a registrable offense.

Penal Law § 130.60(1) states:

A person is guilty of sexual abuse in the second degree when he . . . subjects another person to sexual contact and when such other person is:

(1) Incapable of consent by reason of some factor other than being less than seventeen years old[.]

A person is deemed incapable of consent when he is: (a) less than seventeen years old; or (b) mentally disabled; or (c) mentally incapacitated; or (d) physically helpless . . . . Penal Law §130.05(3).^[FN1] "Physically helpless" means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. Penal Law §130.00(7).

The People assert that Penal Law § 130.60(1) contains all the "essential elements" of Virginia Code Ann. § 18.2-67.4, in that both statutes: (1) criminalize the act of sexual abuse committed without the complainant's consent; (2) essentially define sexual abuse as a touching of intimate parts, whether it be directly or through clothing, with the intent for sexual gratification; and (3) require the sexual abuse to be without the consent of the complaining witness and enumerate the manners in which there is no consent.

A comparison of the elements reveals that there is a significant overlap between the conduct criminalized in the analogous New York offense and the Virginia offense. The Virginia offense, however, also criminalizes conduct not covered under the analogous New York offense. As defendant points out, first, unlike the Virginia offense, no New York SORA offense criminalizes conduct accomplished through the use of a ruse. Additionally, defendant notes that, unlike New York, under Virginia law, "sexual abuse" occurs not only when an offender acts with an intent to gratify the sexual desires of either party, but also when other intents are present, such as intent to sexually molest or arouse. Accordingly, since, on the elements, the Virginia offense is not the equivalent of the New York offense, a review of the conduct underlying the Virginia conviction is necessary.

The People rely on the Chesapeake, Virginia police report to support their contention that defendant's conduct equates to second-degree sexual abuse. The police report, completed by the responding officer, C.L. Heckman, indicates the same information contained in the case summary prepared by the BOE. See supra, p. 1.

Defendant asserts that the information contained in the police report constitutes unreliable hearsay and, therefore, this Court should not consider it. It is clear from the police report that the victim provided the responding officer with the information contained in the report. As the Court of Appeals stated in People v. Mingo, 12 NY3d 563, 574 (2009), hearsay is reliable for SORA [*4]purposes and, therefore, admissible if, based on the circumstances surrounding the development of the proof, a reasonable person would deem it trustworthy. Among the factors considered in evaluating the reliability of proffered hearsay evidence are the age of the conviction and the efforts made to locate relevant documents; whether the proof is corroborated either by the nature of the conviction or other evidence in the record; whether the declarant was under oath or was acting under a duty to accurately report, record or convey information; and whether the circumstances surrounding the making of the statement otherwise bear indicia of reliability. Id.

In People v. Balic, 12 NY3d 563, 573 (2009), a companion case to Mingo, Balic argued that the criminal complaint was unreliable because, although the police officer was under oath, the victim was not. Thus, Balic suggested that SORA courts could consider only sworn victim statements. The Court of Appeals rejected this argument and found the defendant's assertion to be inconsistent with the broad statutory language in Correction Law § 168-n(3), which directs the court to consider "any victim's statement." The Court of Appeals noted that courts in other jurisdictions with comparable regulatory schemes have similarly determined that victim statements can be relied on even if not made under oath. Specifically, the Court cited Matter of C.A., 146 N.J. 71 (1996) and Doe v. Sex Offender Registry Bd., 70 Mass.App.Ct. 309 (App. Ct., Suffolk 2007).

In Matter of C.A., 146 N.J. at 98, the New Jersey Supreme Court held that the victim's statements recounted in police and medical reports constituted reliable hearsay because it was presumed that police officers and medical doctors accurately reported on the statements given to them. In Doe, 70 Mass.App.Ct. at 312, the Appeals Court of Massachusetts held that the hearing court did not err in relying on the victim's statement recounted in the police report.

Like the police officers in Matter of C.A. and Doe, here, the police officer completed the police report based on statements provided by the victim. Accordingly, the police report constitutes reliable hearsay and, as such, will be considered by this Court.

Based on the victim's statements contained in the police report, it is clear that defendant's conduct in Virginia is not equivalent to second-degree sexual abuse. There is nothing in the police report or the case summary to conclude that the victim was incapable of consent. The People cite to the definition of "lack of consent" contained in Penal Law §§ 130.05(2)(a) through (d) to support their contention that defendant's conduct constitutes sexual abuse in the second degree. Sexual abuse in the second degree, however, requires not only a lack of consent, but an incapacity to consent, as defined by Penal Law §§ 130.05(3)(a) through (i).

Neither the police report nor the case summary establishes the victim's incapacity to consent. The police report and case summary indicate that when defendant started kissing the victim, she told him to stop. The victim informed the police that defendant then "leaned over from a sitting position on the couch to laying on top of her . . . ." (Chesapeake police report: confidential supplement, p. 2). The victim indicated that she tried to get up, but defendant was "too big and overpowered her." Id. After grabbing her breasts, butt and vagina through her clothes, defendant got up. Thereafter, the victim got up, and defendant left her house. Under these circumstances, the People have not established that the victim was incapable of consent as defined by Penal Law §§ 130.05(3)(a) through (i).

Accordingly, since defendant's Virginia sexual battery offense of which he was convicted is not equivalent to New York's second-degree sexual abuse charge, he is not required to register as a sex offender in New York. Thus, the instant SORA proceeding is dismissed. [*5]

This constitutes the decision and order of the Court.

Dated:February 26, 2014

Bronx, New York

_________________________

SETH L. MARVIN, A.J.S.C.