The People Of The State Of N.Y. v. Pettigrew

• Decision Date: 06 April 2010
• Citation: 14 N.Y.3d 406,927 N.E.2d 1053
• Parties: The PEOPLE of the State of New York, Respondent,v.Avery PETTIGREW, Appellant.
• Court: New York Court of Appeals Court of Appeals

14 N.Y.3d 406
927 N.E.2d 1053

The PEOPLE of the State of New York, Respondent,
v.
Avery PETTIGREW, Appellant.

Court of Appeals of New York.

April 6, 2010.

Legal Aid Society, Criminal Appeals Bureau, New York City (Nancy E. Little and Steven Banks of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York City (Mary C. Farrington and Patrick J. Hynes of counsel), for respondent.

927 N.E.2d 1054

OPINION OF THE COURT JONES, J.

The issue before this Court is whether the People proved by clear and convincing evidence that defendant was armed with a dangerous instrument for the purposes of classifying him a level three sex offender under the Sex Offender Registration Act (SORA). We hold that defendant's display of a gun to the victim and its threatened use constitute clear and convincing evidence that he was armed with a dangerous instrument during the commission of the crime in the context of a SORA hearing.

In 2003, defendant Avery Pettigrew pleaded guilty to rape in the first degree based on an incident earlier that year in which he forcibly raped a 16-year-old girl, and was sentenced to a term of five years' incarceration followed by five years' postrelease supervision. In April 2007, prior to defendant's conditional release, a SORA proceeding was conducted for the purpose of determining his risk level. The Risk Assessment Instrument (RAI) prepared for the hearing assessed defendant 120 points, designating him a presumptive level three sex offender. The Board of Examiners also prepared a case summary prior to the SORA hearing. According to this case summary, while in pursuit of the victim, defendant said to her “[i]f I can't have you, no one will.” He followed her into the stairwell of her apartment building and choked her. Then, defendant showed the victim a gun sticking out of his waistband, tore her pants down and raped her. Afterwards, defendant informed the victim that he would shoot her if she told anyone.

927 N.E.2d 1055

At the SORA hearing, defendant disputed the 30 points the Board of Examiners of Sex Offenders assessed under factor 1 for having been armed with a dangerous instrument. Defendant specifically argued that the People failed to prove by clear and convincing evidence that the gun he possessed during the rape was loaded and operable, proof that some appellate courts have required in first degree robbery cases based on a “use or the threatened use of a dangerous instrument” theory. Supreme Court rejected...