SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1124 

KA 13-01461 

PRESENT: CENTRA, J.P., FAHEY, SCONIERS, WHALEN, AND DEJOSEPH, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

MICHAEL J. WOLLEK, DEFENDANT-APPELLANT.

 

JAMES S. KERNAN, PUBLIC DEFENDER, LYONS (DAVID M. PARKS OF COUNSEL),

FOR DEFENDANT-APPELLANT. 

RICHARD M. HEALY, DISTRICT ATTORNEY, LYONS (BRUCE A. ROSEKRANS OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from an order of the Wayne County Court (Daniel G.

Barrett, J.), dated July 3, 2013. The order determined that defendant

is a level two risk pursuant to the Sex Offender Registration Act. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Defendant appeals from an order determining,

following a hearing, that he is a level two risk pursuant to the Sex

Offender Registration Act (Correction Law § 168 et seq.). Contrary to

defendant’s contention, he was properly assessed 25 points under risk

factor 2 for sexual contact with the victim. Our analysis differs,

however, from that of County Court (see People v Middleton, 50 AD3d

1114, 1115, affd 12 NY3d 737; see e.g. People v Parilla, 109 AD3d 20,

30-31, lv denied 21 NY3d 865; People v Ferrer, 69 AD3d 513, 514-515,

lv denied 14 NY3d 709), and we note that the record is sufficient for

us to make our own findings of fact and conclusions of law (see e.g.

People v Bradshaw, 60 AD3d 922, 922). The People failed to meet their

burden of establishing by clear and convincing evidence that defendant

engaged in aggravated sexual abuse by inserting a foreign object in

the vagina of the victim (see generally Correction Law § 168-n [3];

Sex Offender Registration Act: Risk Assessment Guidelines and

Commentary, at 5 [2006]). The People also failed to meet their burden

of establishing that defendant engaged in sexual intercourse with the

victim because where, as here, “the hearsay statements of [the victim]

are equivocal or inconsistent, and not substantiated by other proof,

they do not rise to the level of clear and convincing evidence”

(People v Dominie, 42 AD3d 589, 591; see People v Stewart, 61 AD3d

1059, 1060; see generally People v Gonzalez, 28 AD3d 1073, 1074). 

Neither insertion of a foreign object nor sexual intercourse,

therefore, can serve as a basis for the assessment of the challenged

25 points. 
-2- 1124 

KA 13-01461 

Based on our review of the record, however, we conclude that the

People established by clear and convincing evidence that defendant

engaged in aggravated sexual abuse in the second degree (Penal Law §

130.67 [1] [a]) and, thus, that defendant was properly assessed the

challenged 25 points and classified as a presumptive level two risk

(see Risk Assessment Guidelines and Commentary, at 9). As relevant

here, Penal Law § 130.67 (1) (a) provides that “[a] person is guilty

of aggravated sexual abuse in the second degree when he . . . inserts

a finger in the vagina . . . of another person causing physical injury

to such person . . . [b]y forcible compulsion.” Inasmuch as defendant

pleaded guilty to sexual abuse in the first degree (§ 130.65 [1]), it

is undisputed that he engaged in sexual contact with the victim by

forcible compulsion, and the presentence report and the case summary

establish that defendant touched the victim’s vagina by forcible

compulsion (see People v Wilson, 117 AD3d 1557, 1558, lv denied 24

NY3d 902). Moreover, the record establishes that defendant’s digital

penetration of the victim caused physical injury (see § 10.00 [9]).

The medical records introduced at the hearing by defendant establish

that defendant “put his fingers inside of [the victim]” forcefully and

in a manner that hurt her. The results of the victim’s medical

examination establish that she suffered three vaginal lacerations as

well as tenderness, including a two centimeter bruise on her cervix. 

The nurse examiner concluded that the victim suffered an “[a]ctual or

potential alteration in comfort” related to her injury, and that the

physical findings were consistent with sexual assault (see People v

Kruger, 88 AD3d 1169, 1170, lv denied 18 NY3d 806). Further,

defendant’s attorney conceded at the hearing that the physical

injuries were “entirely consistent with the digital penetration” to

which defendant pleaded guilty. On appeal, defendant further concedes

that the vaginal lacerations and cervical bruising documented during

the victim’s medical examination constitute “injuries . . . fully

consistent with penetration by . . . [d]efendant’s fingers.” We thus

conclude that defendant was properly assessed the challenged 25 points

for aggravated sexual abuse (see Risk Assessment Guidelines and

Commentary, at 9), which results in a total score of 80 points,

rendering him a level two risk.

Entered: November 21, 2014 Frances E. Cafarell

Clerk of the Court