1 15-406-cr(L) United States v. Thomas UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PR OCEDURE 32.1 AND THIS CO URT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMEN T FILED WITH THIS CO URT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATA BASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMM ARY 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 Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 4 th day of March, tw o 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.

---------------------------- ---------------------------- -------------- APPEARING FOR APPELLANT: LUCA S 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 States2 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 ORDERE D, ADJUDGED, AND DECREED that the judgment entere d 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) (prohibi ting intentional exposure of private or intimate parts of body in lewd manner or commission of othe r lewd act “in a public place”). Thomas asserts that the ev idence presented at his violation hear ing failed to satisfy the law’s public place element. Supervised release may be re voked when a preponde rance 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 findin g 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 partie s’ familiarity with th e facts and the record of prior proceedings, which we reference onl y 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 the3 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 se ssion. Thomas was facing the hallway and a classroom, with his back to the lockers lining th e 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; rathe r, the likelihood of pub lic 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 determini ng what is a ‘public place’ under Penal Law § 245.00(a).”). We identify no error in the distri ct 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, an d we note as well the high likelihood that he would be seen by other st udents, faculty, or staff.4 We have considered Thomas’s remaining arguments, and we conclude that they are without merit. Accordingl y, the judgment of the di strict court is AFFIRMED.
FOR THE COURT: CATHERINE O’HAGAN WOLF E, Clerk of Court