THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. DOUGLAS CUMMINGS DEFENDANT APPELLANT (2011)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that he was entitled to a downward departure from his presumptive risk level.   We reject that contention.  “A departure from the presumptive risk level is warranted where ‘there exists an aggravating or mitigating factor of a kind or to a degree, not otherwise adequately taken into account by the [Risk Assessment Guidelines of the Sex Offender Registration Act]’ ․ There must exist clear and convincing evidence of the existence of special circumstance[s] to warrant an upward or downward departure” (People v. Guaman, 8 AD3d 545).   Here, defendant failed to establish his entitlement to a downward departure from the presumptive risk level.   The jury convicted defendant of rape by forcible compulsion (Penal Law § 130.35[1] ).   Forcible compulsion means to compel by either the use of physical force or a threat, express or implied, that places another in fear of, inter alia, immediate death or physical injury (see Penal Law § 130.00[8] ).   By virtue of its verdict, the jury necessarily found that defendant used either physical force or a threat of such force to overcome the victim's lack of consent.

Contrary to the contention of defendant, a downward departure is not warranted on the ground that, subsequent to his conviction, the Legislature amended article 130 of the Penal Law (see L 2000, ch 1).   That legislation, in relevant part (see L 2000, ch 1, § 34), added a new subdivision to rape in the third degree, pursuant to which a person is guilty of that crime if “[h]e or she engage[d] in sexual intercourse with another person without such person's consent where such lack of consent is by reason of some factor other than incapacity to consent” (§ 130.25[3] ).   The legislation was “ ‘designed to address the so-called date rape or acquaintance rape situations [where] there [might] be consent to various acts leading up to the sexual act, but at the time of the act, the victim clearly says no or otherwise expresses a lack of consent, and a reasonable person in the actor's situation would understand that the victim was expressing a lack of consent’ “ (People v. Newton, 8 NY3d 460, 463).   Defendant contends that the new subdivision encompasses the conduct for which he was convicted and thus renders his conduct less culpable.   That contention is without merit.   A review of the legislative history establishes that the legislation was intended to “increase[ ] penalties against sex offenders ․ and close[ ] existing loopholes related to sex crime prosecution” (Budget Rep on Bills, Bill Jacket, L 2000, ch 1, at 3).   In addition, the legislation was intended to address “the [former] inadequate definition of ‘lack of consent’ by expanding it to apply where a person, at the time of an act of sexual intercourse or deviate sexual intercourse, clearly expresses lack of consent to engage in such acts” (Mem of Off of Attorney Gen, Bill Jacket, L 2000, ch 1, at 5).   Thus, it cannot be said that the legislation was also intended to reduce the penalties for forcible rape.

Patricia L. Morgan

Clerk of the Court