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DEFENDANT SHOULD NOT HAVE BEEN ASSESSED 20 POINTS FOR A CONTINUING COURSE OF SEXUAL MISCONDUCT, PROOF OF A SECOND INSTANCE OF SEXUAL MISCONDUCT WAS INSUFFICIENT, AN ALLEGATION IN AN INDICTMENT IS NOT, BY ITSELF, EVIDENCE THE INCIDENT OCCURRED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that defendant should not have been assessed 20 points for a continuing course of sexual misconduct, noting that a reference in an indictment is not sufficient proof:

Defendant pleaded guilty to one count of having sexual intercourse with the victim and claimed that he only had sex with the victim once. The People presented a sworn statement given to the police by the victim’s mother in which she recounts that, when she confronted the victim concerning her relationship with defendant, the victim told her that they “had sex two times.” Even assuming that this statement constitutes reliable hearsay … there is no indication by the victim as to when the acts of sexual contact occurred. Although the case summary states that the presentence investigation report reflects that acts of sexual contact occurred in May 2013 and September 2013, the only reference to a September 2013 act in that report is when it lists the charges contained in the indictment. Notably, “the fact that an offender was arrested or indicted for an offense is not, by itself, evidence that the offense occurred” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 5 [2006]). Inasmuch as there is no evidence in the record regarding when the second act of sexual contact occurred, we cannot say that there is clear and convincing evidence that two sexual acts occurred that were separated by at least 24 hours … . People v Hinson, 2019 NY Slip Op 02184, Third Dept 3-21-18

 

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