People v. Thompson

72 N.Y.2d 410, 530 N.E.2d 839, 534 N.Y.S.2d 132 (1988)

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Nature of the Case

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Facts

D and the victim were both inmates at the Albany County jail. The victim, a 16-year-old male, had been in the jail slightly less than three weeks, awaiting disposition of charges that he had sold hashish. He occupied a cell in the first east tier of the jail, a portion of the jail reserved for unsentenced juveniles. Jail policy prohibits adult inmates from entering the juvenile tier. The areas are separated by locked gates. D had spoken to the victim on three occasions in the mess hall and in or near the weight-lifting room. In the latter, D commented on the victim's slight stature and demonstrated his own strength by lifting the victim over his head. D asked to be permitted into the juvenile tier to speak to an inmate. D was admitted to the catwalk area even though this was against policy. D called to the victim through the bars separating the catwalk from the rest of the tier. The victim exited his cell and approached the bars. D wanted the victim to perform an act of oral sex. When he refused, D made a number of threats to have people kick his ass if I didn't do it; that anything could happen to if he walked off the tier; he could put the word out, and he could have anybody kick his ass; if he complied he would have nothing to worry about and if not he would have a rough time. Another inmate viewed the incident and heard D's threats. D then complied and submitted to various acts of sodomy. D renewed his threats between episodes. During the entire incident, the two remained on opposite sides of the bars of the catwalk. The victim asked to be placed in protective custody and reported the incident to officials. D was charged with first and third-degree sodomy. D was convicted of first-degree sodomy. D appealed, and it reversed; D's threats did not rise to the level of forcible compulsion because they were not 'capable of immediately being carried out.'