People v. Faris
| Decision Date | 24 June 2022 |
| Docket Number | 2019-1631 Q C |
| Parties | The PEOPLE of the State of New York, Respondent, v. Derek FARIS, Appellant. |
| Court | New York Supreme Court — Appellate Term |
New York City Legal Aid Society (Nancy E. Little and Will Page of counsel), for appellant.
Queens County District Attorney (Johnnette Traill, Nancy Fitzpatrick Talcott and Marina Arshakyan of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ.
ORDERED that the order is modified by providing that defendant is designated a level one sex offender; as so modified, the order is affirmed, without costs.
At a Sex Offender Registration Act (SORA) hearing, the People submitted a risk assessment instrument (RAI) seeking to assign defendant 80 points. Defense counsel objected only to the 10 points the People sought to assess under risk factor 1 for forcible compulsion. Counsel argued that forcible compulsion under the Penal Law definition (see Penal Law § 130.00 [8] ) is to compel by use of physical force or threats of immediate physical injury or death, and there are no allegations in this case that the victim felt compelled to submit or that defendant used force to overcome resistance by the victim. Based upon the allegation contained in the information that defendant grabbed the victim's vagina with one hand and stated he "wanted to grab her," the hearing court determined that the clear and convincing evidence established forcible compulsion and assessed 10 points under risk factor 1. Consequently, the court assessed a total of 80 points against defendant in the RAI and designated him a level two sex offender.
On appeal, defendant contends that he should have been designated a level one sex offender as the court should not have assessed 10 points under risk factor 1 because there was no evidence presented establishing that he had used forcible compulsion when he touched the victim's vagina.
In establishing a sex offender's appropriate risk level assessment under SORA, "[t]he People have the burden of proving the order is modified by providing that defendant is designated a levelfacts supporting the determination sought by clear and convincing evidence" ( Correction Law § 168-n [3] ; see People v. Mingo , 12 N.Y.3d 563, 572, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ; People v. Wells , 138 A.D.3d 947, 30 N.Y.S.3d 198 [2016] ).
"To avoid ambiguity, the [G]uidelines use terms that are defined in the Penal Law," including "forcible compulsion" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 8 [2006]; see Penal Law § 130.00 [8] ). The term "forcible compulsion" as used in the RAI under risk factor 1 includes "a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person" ( Penal Law § 130.00 [8] [b] ; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 8 [2006]). In determining whether a threat amounts to forcible compulsion, the court must consider "the state of mind produced in the victim by the defendant's conduct" ( People v. Thompson , 72 N.Y.2d 410, 416, 534 N.Y.S.2d 132, 530 N.E.2d 839 [1988] ; see People v. Hartle , 159 A.D.3d 1149, 72 N.Y.S.3d 639 [2018] ; People v. Warren , 22 A.D.3d 773, 804 N.Y.S.2d 376 [2005] ). "Discrepancies in age, size, or strength are relevant factors in determining whether there was such compulsion" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 8; see People v. Vasquez , 49 A.D.3d 1282, 1284, 853 N.Y.S.2d 767 [2008] ).
Here, the evidence relied upon by the court—that defendant grabbed the victim's vagina over her clothing while stating that he "wanted to grab her"—without more, was insufficient to establish forcible compulsion (see Penal Law § 130.00 [8] ; People v. Mack , 18 N.Y.3d 929, 942 N.Y.S.2d 457, 965 N.E.2d 959 [2012] ; People v. Fuller , 50 A.D.3d 1171, 1174-1175, 854 N.Y.S.2d 594 [2008] ). The People failed to introduce clear and convincing evidence showing that defendant overcame physical resistance with his superior size and strength which would support a finding that defendant had used forcible compulsion to compel the victim's compliance (see Vasquez , 49 A.D.3d at 1284, 853 N.Y.S.2d 767 ). The People also did not provide any proof establishing that the victim feared defendant if she did not submit (see Thompson , 72 N.Y.2d at 415-416, 534 N.Y.S.2d 132, 530 N.E.2d 839 ; People v. Coleman , 42 N.Y.2d 500, 505, 399 N.Y.S.2d 185, 369 N.E.2d 742 [1977] ). Consequently, the 10 points assessed under risk factor 1 should be deducted from the 80 points assessed against defendant in the RAI, resulting in the presumptive classification of defendant as a level one sex offender.
We note that, on appeal, the People did not request an upward departure in the event that this court finds defendant to be a presumptive level one sex offender (cf. People v. Lewis , 178 A.D.3d 971, 112 N.Y.S.3d 532 [2019] ; see People v. Bryant , 187 A.D.3d 1657, 131 N.Y.S.3d 481 [2020] ).
Accordingly, the order is modified by providing that defendant is designated a level one sex offender.
TOUSSAINT, J., dissents and votes to affirm the order in the following memorandum:
On February 19, 2019, defendant pleaded guilty to the charge of forcible touching ( Penal Law § 130.52 [1] ) and throwing or dropping offensive matter [urinating] (NY City Health Code [24 RCNY] § 153.09). At a subsequent Sex Offender Registration Act (SORA) hearing, defendant was designated a level two sex offender pursuant to Correction Law article 6-C. On appeal, defendant contends that the correct designation was level one, as the court should not have assessed 10 points under risk factor 1, since no evidence was...
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