15-406-cr(L)
United States v. Thomas


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 4th day of March, two thousand sixteen.

PRESENT: JOHN M. WALKER, JR.,
                 REENA RAGGI,
                 PETER W. HALL,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,

                          v.                                             No. 15-406-cr(L);
                                                                         No. 15-411-cr(CON)
CHRISTOPHER THOMAS,
                  Defendant-Appellant,

TERRENCE SMITH, MURIEL CHERRY,
                                 Defendants.
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APPEARING FOR APPELLANT:                          LUCAS ANDERSON (David Stern, on the
                                                  brief), Rothman, Schneider, Soloway & Stern,
                                                  LLP, New York, New York.

APPEARING FOR APPELLEE:                          ALICYN L. COOLEY, Assistant United States
                                                 Attorney (Emily Berger, Assistant United States


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                                            Attorney, on the brief), for Robert L. Capers,
                                            United States Attorney for the Eastern District of
                                            New York, Brooklyn, New York.

          Appeal from a judgment of the United States District Court for the Eastern District

of New York (John Gleeson, Judge).

          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on January 30, 2015, is AFFIRMED.

          Defendant Christopher Thomas appeals his conviction for violation of supervised

release on the basis of his commission of an act of public lewdness in violation of N.Y.

Penal Law § 245.00(a) (prohibiting intentional exposure of private or intimate parts of

body in lewd manner or commission of other lewd act “in a public place”). Thomas

asserts that the evidence presented at his violation hearing failed to satisfy the law’s public

place element. Supervised release may be revoked when a preponderance of the evidence

admits a finding that a condition of release has been violated. See 18 U.S.C. § 3583(e)(3).

We review a district court’s violation finding only for abuse of discretion and its factual

findings for clear error. See United States v. Carlton, 442 F.3d 802, 810 (2d Cir. 2006).

In conducting our review, we assume the parties’ familiarity with the facts and the record

of prior proceedings, which we reference only as necessary to explain our decision to

affirm.

          While § 245.00 does not define “public place,” the New York Court of Appeals has

concluded that a location “is a ‘public place’ for purposes of this subdivision where the


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objective circumstances establish that lewd acts committed there can, and likely would, be

seen by the casual passerby, whose sensibilities the statute seeks to protect.” People v.

McNamara, 78 N.Y.2d 626, 633–34, 578 N.Y.S.2d 476, 481 (1991). The evidence here

showed that Thomas’s lewd act was committed in a hallway outside multiple classrooms in

the Pratt Institute while classes were in session. Thomas was facing the hallway and a

classroom, with his back to the lockers lining the hallway, when he was observed by a

student in one of the classrooms.

       Thomas does not contest these facts but argues that they do not meet the legal

definition of “public place” because his behavior was targeted at the single witness rather

than passersby at large. The argument fails because § 245.00(a) contains no mens rea

requirement as to public observance; rather, the likelihood of public observance is an

objective test. See People v. McNamara, 78 N.Y.2d at 632, 578 N.Y.S.2d at 480 (“[T]he

actor’s intent is irrelevant to determining what is a ‘public place’ under Penal Law §

245.00(a).”). We identify no error in the district court’s determination that “the objective

circumstances in this case make clear that the lewd act that Mr. Thomas is alleged to have

engaged in not likely but definitely would be seen by this young student whose sensibilities

the statute seeks to protect,” App’x 185, and we note as well the high likelihood that he

would be seen by other students, faculty, or staff.




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      We have considered Thomas’s remaining arguments, and we conclude that they are

without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                FOR THE COURT:
                                CATHERINE O’HAGAN WOLFE, Clerk of Court




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