People v. Thompson

• Decision Date: 20 October 1988
• Citation: 534 N.Y.S.2d 132,72 N.Y.2d 410,530 N.E.2d 839
• Parties: , 530 N.E.2d 839 The PEOPLE of the State of New York, Appellant, v. Charles Anthony THOMPSON, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 132

534 N.Y.S.2d 132

72 N.Y.2d 410, 530 N.E.2d 839

The PEOPLE of the State of New York, Appellant, v. Charles Anthony THOMPSON, Respondent.

Court of Appeals of New York.

Oct. 20, 1988.

Sol Greenberg, Dist. Atty. (Cheryl F. Coleman, Albany, of counsel), for appellant.

Lewis B. Oliver, Jr. and Harriet B. Oliver, Albany, for respondent.

OPINION OF THE COURT

WACHTLER, Chief Judge.

Defendant was convicted, after a trial by jury, of two counts of first degree sodomy (Penal Law § 130.50[1] ). The Appellate Division, 132 A.D.2d 885, 518 N.Y.S.2d 449 reversed the judgment of conviction and remitted the matter for a new trial on the third degree sodomy counts not reached by the jury, on the ground that the People had failed to adduce sufficient evidence of forcible compulsion. Specifically, the Appellate Division held that, because the encounter took place while defendant and the victim were separated by jail bars, the defendant's threats to injure the victim or have others do so could not be carried out "immediately" and therefore did not constituteforcible compulsion as that term is defined in the Penal Law (§ 130.00 former [8] ). We now reverse and remit to the Appellate Division for the exercise of its factual review powers and for the determination of other issues not reached on the appeal to that court.

I.

To determine whether a jury verdict is supported by legally sufficient evidence, a reviewing court must consider "whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial * * * and as a matter of law satisfy the proof and burden requirements for every element of the crime charged" (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [citing Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145] ). Thus, because the jury returned a guilty verdict, the evidence must be viewed by us in the light most favorable to the People. From that perspective, the trial evidence established the following.

The events in question took place on August 6, 1981, while defendant and the victim were both inmates at the Albany County jail. The victim, a 16-year-old male, had been in the jail slightly less than three weeks, awaiting disposition of charges that he had sold hashish. He occupied a cell in the first east tier of the jail, a portion of the jail reserved for unsentenced juveniles. The juvenile tier consists of 25 cells which open to a common walkway known as the bullpen. The cells are routinely unlocked during most of the day, so that the bullpen area is accessible to all inmates on the tier. Beyond the bullpen, and separated from it by a set of bars, is a parallel walkway referred to in the testimony as the catwalk. The bullpen and the catwalk each end in a locked gate, tended by a correction officer, which separate the tier from the rest of the jail. Jail policy prohibits adult inmates from entering the juvenile tier.

The defendant, a 35-year-old male, was housed in one of the adult tiers. He had spoken to the victim on three occasions prior to the August 6 incident, twice in the mess hall, where they engaged in conversation about their backgrounds, and once in or near the weight-lifting room, where defendant commented on the victim's slight stature and demonstrated his own strength by lifting the victim over his head. The victim testified that he was about five feet, six inches tall and weighed approximately 120 pounds. He estimated that defendant was six-feet tall and weighed about 180 pounds.

Sometime between 11:00 A.M. and noon on August 6, defendant approached the correction officer on duty at the gate to the juvenile tier and asked to be permitted into the tier to speak to an inmate. Despite the policy prohibiting such access, defendant was admitted to the catwalk area. The guard then returned to his desk, from which point he was unable to view the tier.

Defendant called to the victim through the bars separating the catwalk from the rest of the tier. The victim exited his cell and approached the bars. Defendant then stated that he wanted the victim to perform an act of oral sex. When the victim refused, defendant issued the threats which are the focus of this appeal. According to the victim:

"[H]e started to threaten me and say he could have people kick my ass if I didn't do it.

* * *

"He told me that anything could happen to me if I walked off the tier. It could happen anywhere, he said. I could get beat up anywhere, it could even be somebody on the tier if he wanted to.

* * *

"He said that he could put the word out on me if he wanted to and he could have anybody kick my ass.

* * *

"[H]e said it was a matter of trusting him and if I did it with him I wouldn't have to worry about it. I wouldn't have to be worried about being bothered again and if I didn't do it, that, you know, the same thing would happen.

* * *

"He would make sure I would have a rough time while I was there.

* * * "He just meant that, you know, he could have somebody kick my ass if he wanted to."

Another inmate on the tier testified that he viewed the incident and heard defendant state, "[I]f you don't give me no piece of ass I'll kick your ass."

Following these threats, the victim complied with defendant's requests that he submit to various acts of sodomy. Defendant renewed his threats between episodes. During the entire incident the two remained on opposite sides of the bars of the catwalk.

That afternoon the victim asked to be placed in protective custody, and the following day he reported the incident to officials. Defendant was charged in an indictment with two counts of first degree sodomy and two counts of third degree sodomy. Following a trial, a jury found defendant guilty of the two first degree counts but did not reach the third degree counts, pursuant to the court's instructions.

II.

First degree sodomy, as charged in the indictment against defendant, occurs when the actor "engages in deviate sexual intercourse with another person * * * [b]y forcible compulsion" (Penal Law § 130.50[1] ). At the time of the alleged crime, forcible compulsion was defined as follows: "physical force which is capable of overcoming earnest resistance; or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person, or in fear that he or another person will immediately be kidnapped" (Penal Law § 130.00 former [8] ). ¹

The Appellate Division concluded that defendant's threats did not rise to the level of forcible compulsion because they were not "capable of immediately being carried out" (132 A.D.2d 885, 886, 518 N.Y.S.2d 449). We note at the outset that, although it may not have been so intended, to the extent that this standard would relieve a defendant of criminal liability simply because he is, in fact, incapable of making good on his threats, it must be rejected.

As we stated in a similar situation, the inquiry required in determining whether threats amount to forcible compulsion is not what the defendant would or could have done, "but rather what the victim, observing [the defendant's] conduct, feared [he] would or might do if [the victim] did not comply with [his] demands" (People v. Coleman, 42 N.Y.2d 500, 505, 399 N.Y.S.2d 185, 369...