Opinion
2012-0079
04-16-2013
The People of the State of New York v. Christopher J. Stack, Defendant.
William G. Gabor, Esq., District Attorney of Madison County (Elizabeth S. Healy, Esq., of counsel), for the People; Michael Spano, Esq., for the Defendant.
William G. Gabor, Esq., District Attorney of Madison County (Elizabeth S. Healy, Esq., of counsel), for the People;
Michael Spano, Esq., for the Defendant.
Dennis K. McDermott, J.
Following his plea of guilty to two counts of Rape, second degree (a class D violent felony), the defendant was sentenced on January 11, 2013 to two concurrent split sentences consisting of six months' incarceration and the balance of ten years of probation supervision. It is now the duty of the court to determine his risk of reoffending pursuant to Article 6-C of the Correction Law.
The court has reviewed the pre-sentence investigation report ("PSI") made by the Onondaga County Department of Probation as well as an assessment dated December 13, 2012 made by Bud C. Ballinger, III, Ph.D. The People have submitted their draft Risk Assessment Instrument and an accompanying memorandum in which they have identified the following factors as being relevant and urge that a total of 75 points be scored which would result in a presumptive assessment that the defendant is a Level 2 ("moderate risk") sex offender:
Factor No. 2: Sexual intercourse with victim25
Factor No. 3: Two victims20
Factor No. 5: Age of victims (between 11 and 16)20
Factor No. 8: Defendant's age at first sex crime (20 or less)10
Total Points75
From the PSI as well as from the written statements given by the two victims, it appears that each of the victims was 14 years old at the time of the commission of the crime. The older of the two, "KW", says in her sworn statement that she first met the defendant some six months earlier on a website that the defendant described as being like Facebook but "more for hooking up." Defendant acknowledged that his purpose in using this website was to meet potential sex partners. According to the PSI, the evening of March 23, 2012 and early morning hours of March 24 was the first time the two had ever met face-to-face. Arrangements were made that they would meet after midnight near a church to "hang out." KW told defendant that she would have a friend with her and the defendant responded, "OK, bring her along." It does not appear that the defendant and the younger girl, "JM", had ever met before.
See Dr. Ballinger's report at page 3.
According to KW's sworn statement, she and JM got into the defendant's car and, after driving around for awhile, the defendant drove to a secluded spot and parked. He then locked the car doors and told the girls that they were going to engage in sexual intercourse with him. According to KW, after the defendant locked the car doors, he " ... would not let us out. He then began to take off my clothes. He took off my T-shirt and then he ripped my bra off of me and then he took my sweat pants off and then pulled my panties off me. All the time I was kicking at him and telling him stop and let us go home. He said no, shut up. ... While this was going on, (JM) was in the back seat and she was crying and screaming."
JM also gave a written statement to the police. While her account is not as graphic as KW's, she does state, "We were both afraid that if we did not do what Chris wanted that he would hurt us."
From the foregoing, in addition to the points that the People would add to the defendant's risk factor score, it appears that two additional factors would be properly scored here:
Factor No. 1: Use of forcible compulsion10
Factor No. 7: Relationship established for purpose of victimization20
Additional points30
The victims' statements were given to the police within mere hours of the incident. Despite some differences, they are generally consistent with each other. Given the attendant circumstances, the statements appear to be trustworthy and credible. People v. Mingo, 12 NY3d 563, 574 (2009); People v. Gauthier, 100 AD3d 1223 (3d Dept 2012).
The defendant contests these allegations and argues that it is necessary for the court to conduct an evidentiary hearing on the issue, citing People v. Judson, 50 AD3d 1242 (3d Dept 2008). In determining a sex offender's risk of reoffending, the court may consider reliable hearsay evidence, including sworn statements given to the police by the victim. People v. Legall, 63 AD3d 1305 (3d Dept 2009), lv denied 13 NY3d 706 (2009); People v. Richards, 50 AD3d 1329 (3d Dept 2008), lv denied 10 NY3d 715 (2008). Judson is distinguishable. There, the court made no written findings so the matter was remanded on appeal with the direction that a hearing be held. Here, the People have presented reliable hearsay that would support the finding. Hence, it appears that there was an element of forcible compulsion at work in the perpetration of these crimes.
Defendant's relationship with KW was limited to on-line communication until the night in question. A plausible argument could be made that he was "grooming" her for this encounter, particularly in light of his admission that his purpose of going on this particular website was to find a sex partner. (See, for example, People v. Simmonds, 74 AD3d 1505 [3d Dept 2010]). Even if that were not the case, however, there was no prior relationship whatever with JM and he was unquestionably a "stranger" to her that night. Contrary to defendant's argument, the fact that they had become "actual acquaintances" that evening and that she identified the defendant by his first name in her sworn statement to the police does not mean that points are not properly scored under this factor. As the Guidelines make clear, this factor applies where the victim was a stranger or where the defendant established or promoted the relationship for the primary purpose of victimization. Where the offense occurs only hours after the victim's first face-to-face meeting with the defendant and was not preceded by even on-line communication, that would be sufficient to negate the claim that they were actual acquaintances. People v. Helmer, 65 AD3d 68 (4th Dept 2009). Nothing in the record suggests that JM knew the defendant before the night of the offense or knew any personal information about him. People v. Odum, 101 AD3d 1693 (4th Dept 2012), lv dismissed ___ NY3d ___ (3/28/13). Indeed, in the PSI, the defendant acknowledged that he "was acquainted with KW and did not know her friend." It is clear what the defendant had in mind for KW that evening. When KW mentioned that she would have a friend with her and the defendant told her "OK, bring her along", then it is equally clear that his plans for JM were the same. Thus, even if the defendant had previously been acquainted with JM, the fact that he used their relationship for the purpose of perpetrating this sexual offense against her would warrant the addition of these points to his risk factor score. People v. Mollenkopf, 54 AD3d 1136 (3d Dept 2008).
See PSI, page 3.
Adding these 30 points to the 75-point score suggested by the People raises the defendant's risk factor score to 105 points but does not result in a higher presumptive risk level. This is not inconsistent with Dr. Ballinger's assessment which concluded that the defendant's risk is in "the lower end of the moderate range."
Dr. Ballinger's report, page 8.
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Finally, the defendant asks that the court "exercise its discretion" and not assess points under Factor No. 8 (defendant's age at time of first sex offense). The defendant cites no authority for this and the court is aware of none. If, as here, a particular factor has been properly identified as applicable, then the points should be scored. It is not something the court can ignore, and the fact that the defendant was "about 13 months away from his 21st birthday" is not a basis for a downward departure from the presumptive risk level.
There are no overrides applicable to this case and there is no basis for a departure from the presumptive risk assessment.
Accordingly, it is
ADJUDGED AND DECREED, that the defendant is a Level 2 ("moderate risk") sex offender.
ENTER:
Judge of the County Court