People v Johnson

People v Johnson 2008 NY Slip Op 09719 [57 AD3d 294] December 11, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 11, 2009

The People of the State of New York, Respondent,
v
Carl Johnson, Appellant.

—[*1] Steven Banks, The Legal Aid Society, New York (Elizabeth B. Emmons of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York (Melissa Pennington of counsel), for respondent.

Order, Supreme Court, New York County (Renee A. White, J.), entered on or about September 12, 2006, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Although defendant disputes a 10-point assessment under the risk factor for forcible compulsion, that challenge, if accepted by this Court, would only reduce his point score to 90 points, which is more than enough for a level two classification. Accordingly, we need not determine whether there was clear and convincing evidence of forcible compulsion.

Defendant did not establish any special circumstances warranting a discretionary downward departure from his presumptive risk level (see People v Guaman, 8 AD3d 545 [2004]). The court did not place undue emphasis on the points it assessed for defendant's prior record, and the mitigating factors he cited were taken into account by the Risk Assessment Guidelines. We have considered and rejected defendant's remaining arguments. Concur—Friedman, J.P., McGuire, Acosta, DeGrasse and Freedman, JJ.