People v. Lashomb

• Decision Date: 24 May 2018
• Docket Number: 524919
• Citation: 77 N.Y.S.3d 745,161 A.D.3d 1465
• Parties: The PEOPLE of the State of New York, Respondent, v. Bryan L. LASHOMB, Appellant.
• Court: New York Supreme Court — Appellate Division

161 A.D.3d 1465

77 N.Y.S.3d 745

The PEOPLE of the State of New York, Respondent,

v.Bryan L. LASHOMB, Appellant.

524919

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: April 25, 2018

Decided and Entered: May 24, 2018

Linda M. Campbell, Syracuse, for appellant.

William G. Gabor, District Attorney, Wampsville (Elizabeth S. Healy, New York, of counsel), for respondent.

Before: Garry, P.J., Lynch, Clark, Aarons and Rumsey, JJ.

MEMORANDUM AND ORDER

Lynch, J.

Appeal from an order of the County Court of Madison County (McDermott, J.), entered March 28, 2017, which classified defendant as a risk level three sex offender pursuant to the Sex Offender Registration Act.

Defendant pleaded guilty to one count of rape in the first degree in October 2011 and was sentenced to a prison term of six years followed by 14 years of postrelease supervision. In anticipation of defendant's release from prison, the Board of Examiners of Sex Offenders prepared a risk assessment instrument that presumptively classified defendant as a risk level three sex offender (145 points) under the Sex Offender Registration Act (see Correction Law art 6–C). Following a hearing, County Court classified defendant as a risk level three sex offender and designated him as a sexually violent offender. Defendant now appeals.

"The People must establish the proper risk level classification by clear and convincing evidence, which may include reliable hearsay such as the risk assessment instrument, case summary, presentence investigation report and statements provided by the victim to police" ( People v. Darrah, 153 A.D.3d 1528, 1528, 61 N.Y.S.3d 390 [2017] [internal quotation marks and citations omitted]; see People v. Saunders, 156 A.D.3d 1138, 1139, 67 N.Y.S.3d 351 [2017] ). At the hearing, defendant contested the points assessed under risk factors 7 (relationship with victim), 8 (age at first sex crime), 11 (drug or alcohol abuse), 12 (acceptance of responsibility) and 13 (conduct while confined). Upon reviewing the record as a whole and taking into consideration the documentary evidence adduced by the People, we find defendant's various challenges to the points imposed to be unavailing and, accordingly, affirm County Court's order.

With respect to risk factor 7, which "requires the People to establish that the crime ‘was directed at a stranger or a person with whom a relationship had been established or promoted for the primary purpose of victimization’ " ( People v. Parisi, 147 A.D.3d 1162, 1163–1164, 46 N.Y.S.3d 714 [2017], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 12 [2006] ), the record reflects that defendant met the 12–year–old victim online and that the two thereafter exchanged text messages—"some of which were sexual in nature." Defendant then accepted the victim's invitation to visit her home, which he entered via the victim's bedroom window after her parents had gone to bed, and—despite learning that the victim was underage—defendant engaged in sexual intercourse with her. Notably, both the victim's and defendant's statements to law enforcement make clear that they discussed having sex with one another prior to their first sexual encounter, and the record reflects that defendant continued to engage in sexual activity with the victim even after she revealed her true age. Under these circumstances, we reject defendant's characterization of his relationship with the victim as boyfriend and girlfriend and find that the assessment of 20 points under this risk factor was entirely proper (see People v. Gifford, 144 A.D.3d 1678, 1679, 41 N.Y.S.3d 649 [2016], lv denied 28 N.Y.3d 915, 2017 WL 580485 [2017] ; People v. Walker, 125 A.D.3d 1516, 1517, 3 N.Y.S.3d 255 [2015] ; People v. Washington, 91 A.D.3d 1277, 1277, 937 N.Y.S.2d 643 [2012], lv denied 19 N.Y.3d 801, ...