In 2003, the defendant in People v. Pettigrew (Ct. App. 4/6/2010), pleaded guilty to Rape 1º. He forcibly raped a sixteen year old girl. As a result, he was sentenced to five years in prison and a five year post-release sentence. In conjunction with defendant's conditional release, a proceeding was conducted in order to determine his risk level. The Risk Assessment Instrument revealed an assessment of 120, thereby designating the defendant as a level three offender. This assessment was based on the fact that the defendant showed the victim a gun sticking out of his waistband immediately before he raped her. In addition, the defendant told the victim he would shoot her if she told anyone.
The defendant disputed thirty of the one-hundred twenty points. He argued that the People failed to prove that the gun—the alleged dangerous instrument—was loaded and operable at the time of the crime. Both the Supreme Court and the Appellate Court rejected this argument. The Court of Appeals similarly affirmed.
The Court of Appeals indicated that the People had to prove by clear and convincing evidence that the defendant was armed with a dangerous instrument, during the commission of the offense. The Court held that the People met that burden. The Court emphasized that a dangerous instrument means: "any instrument ... readily capable of causing death or other serious physical injury." The defendant's display of the gun and his subsequent threat to use it on the victim was clear and convincing evidence that the gun constituted a dangerous instrument. (DAL/LC)
Comments