People v. Vasquez

• Decision Date: 14 March 2008
• Docket Number: KA 07-01605.
• Citation: 49 A.D.3d 1282,853 N.Y.S.2d 767,2008 NY Slip Op 02371
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ANTHONY M. VASQUEZ, Appellant.
• Court: New York Supreme Court — Appellate Division

49 A.D.3d 1282

853 N.Y.S.2d 767

2008 NY Slip Op 02371

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ANTHONY M. VASQUEZ, Appellant.

KA 07-01605.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

Decided March 14, 2008.

Appeal from an order of the Ontario County Court (Frederick G. Reed, J.), entered September 19, 2006. 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 that he is a level two risk pursuant to the Sex Offender Registration Act ([SORA] Correction Law § 168 et seq.). 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 crimes arising from two incidents involving different victims. Defendant was convicted of forcible touching (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]" triggering the SORA registration process because defendant had not previously been convicted of a sex offense, 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 in assessing any points against him under the "Current Offense(s)" section of the risk assessment instrument (RAI) based upon that incident and that the court erred in assessing 20 points for defendant's commission of sex offenses against two victims. The court also erred in assessing 15 points for defendant's history of drug and alcohol abuse inasmuch as there was no evidence that defendant used drugs or alcohol in connection with the second incident (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 15 [2006]), and the People otherwise failed to establish by clear and convincing evidence that defendant had a history of alcohol or drug abuse (see People v Collazo, 7 AD3d 595, 596 [2004]).

Contrary to the contention of defendant, however, the court properly assessed 10 points for his use of forcible compulsion in the second incident. Because the Risk Assessment Guidelines employ the terminology of the Penal Law, the term "forcible compulsion" as used in the RAI includes "a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person" (§ 130.00 [8] [b]; see Risk Assessment Guidelines and Commentary, at 8). 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 NY2d 410, 416 [1988], rearg denied 73 NY2d 870 [1989]), and "`relevant factors include the age of the victim, the relative size and strength of the defendant and victim, and the nature of the defendant's relationship to the victim'" (People v Voymas, 39 AD3d 1182, 1183 [2007], lv denied 9 NY3d 852 [2007]; see People v Sehn, 295 AD2d 749, 750 [2002], lv denied 98 NY2d 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 clear and convincing evidence that defendant used forcible compulsion, notwithstanding that he was acquitted of rape in the first degree (Penal Law § 130.35 [...