| People v Vasquez |
| 2008 NY Slip Op 02371 [49 AD3d 1282] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Anthony M.Vasquez, Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua, for respondent.
Appeal from an order of the Ontario County Court (Frederick G. Reed, J.), enteredSeptember 19, 2006. The order determined that defendant is a level two risk pursuant to the SexOffender Registration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level two riskpursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 etseq.). We conclude that County Court properly determined that defendant is a level two risk,although our reasoning differs from that of the court. Defendant was convicted of multiple crimesarising from two incidents involving different victims. Defendant was convicted of forcibletouching (Penal Law § 130.52) and sexual abuse in the third degree (§ 130.55)arising out of the first incident, but those offenses do not constitute "[s]ex offense[s]" triggeringthe SORA registration process because defendant had not previously been convicted of a sexoffense, sexually violent offense, forcible touching, or sexual abuse in the third degree(Correction Law § 168-a [2] [c]). Thus, we agree with defendant that the court erred inassessing any points against him under the "Current Offense(s)" section of the risk assessmentinstrument (RAI) based upon that incident and that the court erred in assessing 20 points fordefendant's commission of sex offenses against two victims. The court also erred in assessing 15points for defendant's history of drug and alcohol abuse inasmuch as there was no evidence thatdefendant used drugs or alcohol in connection with the second incident (see Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary, at 15 [2006]), and the Peopleotherwise failed to establish by clear and convincing evidence that defendant had a history ofalcohol or drug abuse (see People vCollazo, 7 AD3d 595, 596 [2004]).
Contrary to the contention of defendant, however, the court properly assessed 10 points forhis use of forcible compulsion in the second incident. Because the Risk Assessment Guidelinesemploy the terminology of the Penal Law, the term "forcible compulsion" as used in the RAIincludes "a threat, express or implied, which places a person in fear of immediate death orphysical injury to himself, herself or another person" (§ 130.00 [8] [b]; see RiskAssessment [*2]Guidelines and Commentary, at 8). Indetermining whether a threat amounts to forcible compulsion, the court must consider "the stateof mind produced in the victim by the defendant's conduct" (People v Thompson, 72NY2d 410, 416 [1988], rearg denied 73 NY2d 870 [1989]), and " 'relevant factorsinclude the age of the victim, the relative size and strength of the defendant and victim, and thenature of the defendant's relationship to the victim' " (People v Voymas, 39 AD3d 1182, 1183 [2007], lv denied 9NY3d 852 [2007]; see People v Sehn, 295 AD2d 749, 750 [2002], lv denied 98NY2d 732 [2002]). Here, the 19-year-old victim testified that defendant, a former State Trooper,used force, and she feared that he would hurt her if she resisted. That testimony constitutes clearand convincing evidence that defendant used forcible compulsion, notwithstanding that he wasacquitted of rape in the first degree (Penal Law § 130.35 [1]) and was instead convicted ofrape in the third degree (§ 130.25 [3]). Thus, including the 10 points properly assessed forforcible compulsion, the total risk factor score is 35, presumptively classifying defendant as alevel one risk.
Nevertheless, we conclude that an upward departure to a level two risk was warrantedinasmuch as there was the requisite clear and convincing evidence of " 'an aggravating ormitigating factor of a kind, or to a degree, not otherwise adequately taken into account by theguidelines' " (People v Dexter, 21AD3d 403, 404 [2005], lv denied 5 NY3d 716 [2005]). Here, the court stated that theupward departure from the presumptive risk level was based on defendant's status as a statetrooper. That status alone does not, however, constitute a special circumstance warranting anupward departure because defendant is no longer a state trooper, and his former status does notbear upon his risk of re-offending. Nevertheless, we conclude that defendant's concurrentconviction of the misdemeanor offenses arising out of the first incident warranted an upwarddeparture from the presumptive risk level. Such a concurrent conviction "may be the basis for anupward departure if it is indicative that the offender poses an increased risk to public safety"(Risk Assessment Guidelines and Commentary, at 14). Here, the record establishes that, twomonths before raping the second victim, defendant not only forcibly touched the first victim but,when she rejected his advances, he became enraged, took her car keys to prevent her fromleaving, and relented only after she had secured herself within a locked building forapproximately an hour. Present—Hurlbutt, J.P., Lunn, Fahey, Peradotto and Pine, JJ.