People v. Hamilton

57 A.D.3d 1478, 869 N.Y.2d 838

Opinion

Memorandum: We reject the contention of defendant that Supreme Court erred in determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). The court properly assessed 10 points for forcible compulsion based upon defendant’s rape of a five-year-old victim (see generally People v LaRock, 45 AD3d 1121, 1122-1123 [2007]), as well as 15 points for a prior nonviolent felony and 10 points for a recent prior felony based upon defendant’s plea of guilty to a class C felony prior to defendant’s commission of the rape (see CPL 1.20 [13]; People v Hernandez, 93 NY2d 261, 267 [1999]), and defendant thus had a score that was sufficient to render him a level three risk. Contrary to the further contention of defendant, he failed to establish his entitlement to a downward departure from the presumptive risk level “inasmuch as he failed to present the requisite clear and convincing evidence of the existence of special circumstances warranting a downward departure” (People v Marks, 31 AD3d 1142, 1143 [2006], lv denied 7 NY3d 715 [2006]; see People v McDaniel, 27 AD3d 1158 [2006], lv denied 7 NY3d 703 [2006]). Present—Hurlbutt, J.P., Martoche, Fahey and Gorski, JJ.