PEOPLE v. THOMAS (2024)

MEMORANDUM AND ORDER

Appeal from an order of the County Court of Albany County (William T. Little, J.), entered August 8, 2023, which classified defendant as a risk level two sex offender pursuant to the Sex Offender Registration Act.

In 2020, defendant pleaded guilty to sexual abuse in the first degree and was sentenced to a three-year prison term to be followed by 10 years of postrelease supervision.  The conviction stems from defendant's conduct in March 2020 on a city street near a bus stop in subjecting the victim, who was waiting for a bus, to sexual contact by forcible compulsion.  According to the victim's account, defendant grabbed her buttocks with his hand as he walked by and, when the victim called him out for grabbing her, he turned around, exposing his penis while masturbating, approached the victim up close and attempted to pull her to a dark area behind the bus stop, all the while commanding her to perform a sex act.  The victim managed to get away, assisted by a passing motorist.

In anticipation of his release from prison, the Board of Examiners of Sex Offenders and the People prepared identical risk assessment instruments (hereinafter RAI) in accordance with the Sex Offender Registration Act (see Correction Law art 6–C [hereinafter SORA]) that assigned a total of 85 points, presumptively classifying defendant as a risk level two sex offender.  At the SORA hearing, defendant unsuccessfully challenged the assessment of 20 points under risk factor 7, which were added based upon defendant's victimization of a stranger.  County Court agreed with the People and the Board's position, assigning 85 points including 20 points for risk factor 7, and classified defendant as a sexually violent, risk level two sex offender.  Defendant appeals.

Defendant's sole contention is that County Court erred in assigning 20 points under risk factor 7, on the premise that the People failed to establish that he and the victim were strangers.  Under SORA, the People “bear the burden of proving the facts supporting the determinations sought by clear and convincing evidence” (Correction Law § 168–n [3];  see People v. Mingo, 12 N.Y.3d 563, 571, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009]), which requires proof that the facts on which the People rely are “highly probable” (People v. Stewart, 61 A.D.3d 1059, 1060, 876 N.Y.S.2d 208 [3d Dept. 2009] [internal quotation marks and citations omitted];  accord Currie v. McTague, 83 A.D.3d 1184, 1185, 921 N.Y.S.2d 364 [3d Dept. 2011]).  Under risk factor 7, 20 points may be assessed where, as relevant here, “the offender's crime ․ was directed at a stranger” (Sex Offender Registration Act Risk Assessment Guidelines and Commentary at 12 [2006]).  The risk assessment guidelines provide that “the term ‘stranger’ includes anyone who is not an actual acquaintance of the victim” (Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 12 [2006]).  The “concern with sex offenders who direct their crimes at strangers is ․ [that they] pose a special danger to the community ․, [warranting] ‘a heightened concern for public safety and need for community notification’ ” (People v. Johnson, 11 N.Y.3d 416, 419, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008], quoting Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 12 [2006]).  “In assessing points, evidence may be derived from the defendant's admissions, the victim's statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board ․ or any other reliable source, including reliable hearsay” (People v. Beazer, 181 A.D.3d 729, 729, 117 N.Y.S.3d 624 [2d Dept. 2020] [internal quotation marks and citations omitted];  see Correction Law §§ 168–d [3];  168–n [3]).

The victim's statement to police regarding the crime described a street encounter late at night while she was waiting for a bus, “strongly suggest[ing] a random encounter” as County Court appropriately characterized the crime.  The victim, who recounted seeing defendant “really close” up, provided a detailed description of defendant's attributes, including his race, skin color, hairstyle and clothing but gave no indication that she had ever seen him, recognized him, knew him or his name or knew anything about him other than his appearance, referring to him as “a male” and “[t]he guy” (see People v. Serrano, 61 A.D.3d 946, 947, 877 N.Y.S.2d 472 [2d Dept. 2009], lv denied 13 N.Y.3d 704, 2009 WL 2779385 [2009];  People v. Lewis, 45 A.D.3d 1381, 1381, 845 N.Y.S.2d 585 [4th Dept. 2007], lv denied 10 N.Y.3d 703, 854 N.Y.S.2d 103, 883 N.E.2d 1010 [2008];  People v. Gaines, 39 A.D.3d 1212, 1212–1213, 834 N.Y.S.2d 417 [4th Dept. 2007], lv denied 9 N.Y.3d 803, 840 N.Y.S.2d 763, 872 N.E.2d 876 [2007];  see also People v. Odum, 101 A.D.3d 1693, 1693, 956 N.Y.S.2d 772 [4th Dept. 2012], lv denied 20 N.Y.3d 1094, 965 N.Y.S.2d 79, 987 N.E.2d 641 [2013];  cf.  People v. McGraw, 24 A.D.3d 525, 526, 808 N.Y.S.2d 276 [2d Dept. 2005]).  Contrary to defendant's argument, the victim's account did not compel the inference that she never saw the perpetrator's face and was unable to determine whether she knew him given that, among other factors, she saw him close up and was able to identify his skin color and hairstyle.  Likewise, defendant's statement to probation authorities gave no indication that he was acquainted with or had ever previously interacted with the victim in any capacity or knew her name or anything about her (see People v. Middlemiss, 153 A.D.3d 1096, 1097, 60 N.Y.S.3d 593 [3d Dept. 2017], lv denied 30 N.Y.3d 906, 2017 WL 5615862 [2017];  see also People v. Coleman, 203 A.D.3d 851, 852, 160 N.Y.S.3d 909 [2d Dept. 2022], lv denied 38 N.Y.3d 910, 2022 WL 2165473 [2022];  People v. Miller, 186 A.D.3d 1095, 1096, 128 N.Y.S.3d 405 [4th Dept. 2020], lv denied 36 N.Y.3d 903, 2020 WL 7529188 [2020];  People v. Tumminia, 112 A.D.3d 1002, 1003, 976 N.Y.S.2d 312 [3d Dept. 2013], lv denied 22 N.Y.3d 864, 2014 WL 1243637 [2014]).

“The term ‘acquaintance’ spans a range of social interactions” (People v. Helmer, 65 A.D.3d 68, 69–70, 880 N.Y.S.2d 598 [4th Dept. 2009]).  Here, however, there was no evidence that the victim had ever even come in contact with or communicated with defendant before this random street crime (see People v. Luna, 187 A.D.3d 805, 806, 130 N.Y.S.3d 323 [2d Dept. 2020];  People v. Miller, 186 A.D.3d at 1096, 128 N.Y.S.3d 405;  People v. Lashomb, 161 A.D.3d 1465, 1466–1467, 77 N.Y.S.3d 745 [3d Dept. 2018];  People v. Mitchell, 142 A.D.3d 542, 543, 36 N.Y.S.3d 490 [2d Dept. 2016], lv denied 28 N.Y.3d 909, 2016 WL 6840087 [2016];  People v. Palacios, 137 A.D.3d 761, 761–762, 26 N.Y.S.3d 351 [2d Dept. 2016];  see also People v. Patrick, 219 A.D.3d 848, 849, 196 N.Y.S.3d 20 [2d Dept. 2023], lv denied 40 N.Y.3d 910, 2024 WL 157279 [2024];  People v. Hernandez, 55 Misc.3d 1221[A], 2017 WL 2413854 [Sup. Ct., Bronx County 2017], affd 213 A.D.3d 615, 182 N.Y.S.3d 901 [1st Dept. 2023], lv denied 39 N.Y.3d 916, 2023 WL 4003974 [2023];  compare People v. Perez, 165 A.D.3d 1628, 1628–1629, 85 N.Y.S.3d 668 [4th Dept. 2018];  People v. Birch, 114 A.D.3d 1117, 1118, 981 N.Y.S.2d 189 [3d Dept. 2014];  People v. Helmer, 65 A.D.3d at 69–70, 880 N.Y.S.2d 598).  Given the foregoing, we find that although there was no direct evidence ¹ regarding the connection between the victim and defendant, the circumstantial evidence was compelling and constituted clear and convincing evidence to support County Court's reasonable inference (see People v. Green, 201 A.D.3d 1137, 1139, 159 N.Y.S.3d 756 [3d Dept. 2022], lv denied 38 N.Y.3d 906, 2022 WL 1258692 [2022];  People v. Arnold, 126 A.D.3d 463, 464, 5 N.Y.S.3d 74 [1st Dept. 2015], lv denied 25 N.Y.3d 910, 2015 WL 3605063 [2015]) that they were strangers within the meaning of the guidelines, and not actual acquaintances (see People v. Gillotti, 23 N.Y.3d 841, 861–862, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014];  cf.  People v. Graves, 162 A.D.3d 1659, 1660–1661, 79 N.Y.S.3d 798 [4th Dept. 2018], lv denied 32 N.Y.3d 906, 2018 WL 4924761 [2018]).  Accordingly, 20 points were properly assessed under risk factor 7.

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   While we agree with defendant that the “best evidence” that would illuminate the connection between a defendant and a victim would be a statement or testimony by the victim, a witness or defendant on point, in this case the evidence and reasonable inferences therefrom were nonetheless sufficient to establish this factor (People v. Mingo, 12 N.Y.3d at 574, 883 N.Y.S.2d 154, 910 N.E.2d 983).

Powers, J.

Garry, P.J., Egan Jr., Fisher and McShan, JJ., concur.