Opinion
5888 Ind. 2855/07
03-01-2018
The PEOPLE of the State of New York, Respondent, v. Robert POLLACK, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Kelly L. Smith of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Kelly L. Smith of counsel), for respondent.
Sweeny, J.P., Renwick, Tom, Mazzarelli, Oing, JJ.
Order, Supreme Court, New York County (Charles H. Solomon, J.), entered on or about September 19, 2016, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.
The court correctly assessed 20 points under the risk factor for relationship (i.e.stranger) with victim, because clear and convincing evidence established that defendant and the victim were strangers within the meaning of the Guidelines, having only met within 24 hours of the crime (see People v. Corn, 128 A.D.3d 436, 437, 8 N.Y.S.3d 322 [1st Dept. 2015] ; 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, 886 N.Y.S.2d 366, 915 N.E.2d 291 [2009] ; People v. Gaines, 39 A.D.3d 1212, 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] ). The fact that defendant and the victim spent the night together before defendant forcibly raped her the next morning does not undermine a finding that they were strangers.
Defendant's claim that the court incorrectly assessed five points for inflicting physical injury is academic because subtraction of those five points would not affect defendant's risk level (see Corn, 128 A.D.3d at 437, 8 N.Y.S.3d 322 ). In any event, the determination that defendant caused substantial pain to the victim was also supported by clear and convincing evidence (see People v. Chiddick, 8 N.Y.3d 445, 447–448, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007] ).
In light of these determinations, we find it unnecessary to address any other issue.