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People v Hernandez

The question before the court is whether the people have established through clear and convincing evidence that the defendant was a stranger to the victim at the time of the rape. The answer will determine whether he is a Level 2 sex offender based on the facts, the court says yes.

On February 21, 2017 the defendant plead guilty to rape in the 3d degree pursuant to Penal Law 130.25(3). He was sentenced pursuant to a plea bargain to incarceration for 1 ½ years in state prison followed by 6 years of probation. He was released on June 20, 2017. The Board of Examiners for Sex Offenders recommend the court adjudicate defendant a level 2 sex offender based on various risk factors. One risk factor is challenged, risk factor number 7, which is the relationship of the defendant and the rape victim. The defendant introduced evidence that he and the victim were acquainted. The court says he is wrong.

The court agrees with the police report that the defendant was a stranger to the victim, who was 13 years old at the time and the defendant was 25. The victim and her classmate ditched school and took a subway to the Bronx. Her classmate met a male friend there, and the 3 “hung out” for awhile. The victim was the left alone in the defendant’s apartment and was raped during this time.

The defendant contends that they had met through a friend they were not strangers. This argument doesn’t meet the SORA guidelines. They define a stranger as “not an acquaintance of the victim.” A stranger can even be someone who lives in the same apartment building if they have never met.

The court looked at the briefs of another case, People v Johnson 93 AD 3d 1323 (4th Department 2012). In that case, the defendant and the victim went to the same church and there was religious and social contact between them.

Here, the defendant was friends with the victim’s friend. The friend knew that the defendant and where he lived. But there is no evidence she met him prior to that day.

The term acquaintance spans a range of the social interactions (People v Helmer 65 AD 3d 68 (4th Dept. 2009). This is not a case where there was even extended electronic communication prior to their meeting (People v Birch 114 AD3d 1117, People v Tejada 51 AD3d 472 (1st Dept. 2008).

Here, the victim and the defendant met on the same day. The court finds clear and convincing evidence to assess 20 risk factors, one of which that was the people in this case were strangers. The defendant meets the criteria as a Level 2 sex offender.

The defendant thinks he should a Level 1 sex offender. He says that the number of points he assessed is 75, which lands him at the bottom level of a Level 2 offender. That he argues that for this reason, there should be a downward rounding off of the number to a Level 1. There is no legal requirement for this (People v Filkins 107 AD 3d 1069, 1070 (3d Dept. 2013).

The defendant has the of showing mitigating facts that would justify the court exercising its discretion and order a downward rounding off of the number (People v Torres 120 AD 3d 1126, 1127 (1st Dept. 2014). The defendant failed to meet this burden.

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