"which places a person in fear of immediate death or physical injury to himself, herself or another person. . . ."
Id. (citing N.Y. Penal Law § 130.00(8)(b) (McKinney 1987)).
The Magistrate went on to reason that an implied threat can be conveyed, among other ways, indirectly through an oral statement; and that petitioner's oral statements could have been interpreted as "an implied threat that the victim would suffer physical injury[.]" Id. at 8-9. At this point, the Magistrate did not specify to which oral statements he was referring. Earlier in the Report-Recommendation, however, the Magistrate noted that after the complainant accepted a ride home from the petitioner, he proceeded to go in another direction - away from her home. When the complainant advised the petitioner that they were going the wrong way, the "petitioner replied that they were going for a little ride, at which point she began crying and asking repeatedly to be taken home." Id. at 3. In addition, in response to petitioner's inquiry as to whether "she gave head," complainant responded, "No." Id. (citing Record at 196). At that point, petitioner advised the complainant, "well, you have a problem." Id. After that, petitioner got out of the car, walked around to where the complainant was and ordered her out of the car. Id. at 3-4. When the complainant responded "No" to petitioner's inquiry as to whether she had any drugs, he grabbed the complainant's purse, telling her, "Don't move. Stay there or you are going to be in trouble." Id. at 4 (citing Record at 197). Further details of this incident are recounted at pages four through five of the Report-Recommendation. Eventually, following three acts of sodomy, and after leaving the complainant several miles from her home at approximately 3:30 a.m., the petitioner told the victim "that he could be very violent and that he could track her down if she said anything to anyone." Id. at 5. Presumably it is that evidence, in combination, to which the Magistrate was referring when he concluded that petitioner's oral statements could have been interpreted as an implied threat as that term is used in § 130.00(8)(b).
The Magistrate bolstered his finding that the definition of forcible compulsion is not unconstitutionally vague by noting that "the highest court of New York State has aided in the prevention of arbitrary and discriminatory enforcement of this statute by establishing clear guidelines for the trier of fact." Id. at 9. The Magistrate went on to note that in People v. Thompson, 72 N.Y.2d 410, 534 N.Y.S.2d 132, 530 N.E.2d 839 (1988), the Court of Appeals held that the "proper focus" in determining whether threats amount to forcible compulsion "is on the state of mind produced in the victim by the defendant's conduct, . . . ." Id. at 416, 534 N.Y.S.2d at 134. The Court of Appeals thus explained, "the inquiry required in determining whether threats amount to forcible compulsion is not what the defendant would or could have done, 'but rather what the victim observing [the defendant's] conduct, feared [he] would or might do if [the victim] did not comply with [his] demands[.]" Id. (quoting People v. Coleman, 42 N.Y.2d 500, 505, 399 N.Y.S.2d 185, 187, 369 N.E.2d 742 (1977)). The Court of Appeals then explained that this is the proper focus "because the sine qua non for criminal liability for sex offenses under our Penal Law is lack of consent, resulting from either forcible compulsion or incapacity to consent. . . ." Id. (citing Penal Law § 130.05).
The petitioner strenuously objects to the Magistrate's finding that New York's definition of "forcible compulsion" passes constitutional muster. Petitioner offers a two-pronged challenge to § 130.00(8)(b)'s definition of "forcible compulsion." First, he asserts that that statute "is void for vagueness as construed by the Court of Appeals since no potential defendant can ascertain the subjective state of mind of the potential complainant before, during or after a sexual act; . . . ." Objections at 3 (emphasis added). Second, the petitioner contends "that he was denied due process of law in how this statute was applied to him since the People never produced any evidence of a threat of physical injury, either express or implied." Id. (emphasis added). As presented, petitioner is making both a "facial" and an "as-applied" challenge to section 130.00(8)(b), although in analyzing these two separate challenges, petitioner confuses the scope of proper inquiry under each. Likewise, the Magistrate did not clearly distinguish between a facial and as-applied challenge. However, because plainly both are raised in petitioner's objections, this court will make such a distinction. Moreover, as will be seen, that distinction is critical to an analysis of the Magistrate's finding that section 130.00(8)(b) is not unconstitutionally vague.
When a statute is challenged facially, that means it is "invalid in toto-and therefore incapable of any valid application." Steffel v. Thompson, 415 U.S. 452, 474, 94 S. Ct. 1209, 1223, 39 L. Ed. 2d 505 (1974). "To show a statute is unconstitutionally vague on its face, 'the complainant must prove that the enactment is vague 'not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. Such a provision simply has no core."" United States v. Schneiderman, 968 F.2d 1564, 1567 (2d Cir. 1992) (quoting Village of Hoffman Estates v. The Flipside, 455 U.S. 489, 495 n. 7, 102 S. Ct. 1186, 1191 n. 7, 71 L. Ed. 2d 362 (1974) (quoting in turn Smith v. Goguen, 415 U.S. 566, 578, 94 S. Ct. 1242, 1249, 39 L. Ed. 2d 605 (1974) (citation omitted)). It is well established, however, that "vagueness challenges that do not involve the First Amendment must be examined in light of the specific facts of the case at hand and not with regard to the statute's facial validity." United States v. Nadi, 996 F.2d 548, 550 (2d Cir. 1993) (emphasis added) (citing, inter alia, Chapman v. United States, 500 U.S. 453, 111 S. Ct. 1919, 1929, 114 L. Ed. 2d 524 (1991)); see also United States v. Jackson, 968 F.2d 158, 160 (2d Cir. 1992) (citations omitted) (same) . Therefore, "one to whose conduct a statute clearly applies may not successfully challenge it for vagueness." Hoffman Estates, 455 U.S. at 495 n. 7, 102 S. Ct. at 1191 n. 7 (emphasis added). Stated somewhat differently, one "who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." Id. As the Supreme Court explained:
the rationale is evident: to sustain such a challenge, the complainant must prove that the enactment is vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.'
Id. (quoting Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S. Ct. 1686, 1688, 29 L. Ed. 2d 214 (1971)). Thus, as the Supreme Court has instructed, "[a] court should . . . examine the complainant's conduct before analyzing other hypothetical applications of the law." Id. (emphasis added). In other words, when a statute is attacked on both facial and as-applied grounds, the latter must be considered first unless, of course, First Amendment issues are at stake. Cf. United States v. Jackson, 968 F.2d 158, 161 (2d Cir. 1992) ("Because this challenged does not implicate First Amendment freedoms the district court's conclusion that the provisions are facially invalid was erroneous and must be reversed.").
Applying those rules to the present case, the court must first engage in an analysis of section 130.00(8)(b) as it applies to petitioner. That is so because petitioner's facial challenge to this particular statute does not implicate First Amendment concerns. See Hoffman Estates, 455 U.S. at 495-96, 102 S. Ct. at 1191-92. Rather, petitioner's facial challenge to section 130.00(8)(b) focuses on the fact that, in his view, that statute is impermissibly vague because it fails to give adequate notice that certain conduct may be proscribed thereunder. The second part of petitioner's facial challenge is "that the statutory term 'implied threat' impermissibly delegates basic policy matters to policemen [sic], judges and juries on an ad hoc and subjective basis with the attendant dangers of arbitrary and discriminatory application." Objections at 4 (citation omitted). Consequently, because as just explained, petitioner's facial challenge to § 130.00(8)(b) does not invoke First Amendment concerns, under the Supreme Court's reasoning in Hoffman Estates and its progeny, if the court finds that that statute is constitutional as applied to the petitioner, then his facial challenge must fail. See id. at 495, 102 S. Ct. at 1191; see also United States v. Strauss, 999 F.2d 692, 698 (2d Cir. 1993) (citations omitted) ("Because 'the statute is judged on an as-applied basis,' Maynard v. Cartwright, 486 U.S. 356, 361, 108 S. Ct. 1853, 1858, 100 L. Ed. 2d 372 (1988), one whose conduct is clearly proscribed by a statute may not successfully challenge it for vagueness.") Thus, the court will now turn to a consideration of petitioner's as-applied challenge.
The two-part test for determining whether a statute is unconstitutionally vague as applied in a given case is well settled:
a court must 'first determine whether the statute 'give[s] the person of ordinary intelligence a reasonable opportunity to know what is prohibited' and then consider whether the law 'provide[s] explicit standards for those who apply [it]."