People v Maxwell

People v Maxwell 2009 NY Slip Op 04404 [63 AD3d 707] June 2, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 5, 2009

The People of the State of New York, Respondent,
v
Charles Maxwell, Appellant.

—[*1] Lynn W. L. Fahey, New York, N.Y. (Anna Pervukhin of counsel), for appellant.

Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Morgan J. Dennehy, and Linda Breen of counsel), for respondent.

Appeal by the defendant from an order of the Supreme Court, Kings County (Chambers J.), dated January 4, 2008, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

The defendant's contention that the assessment of points for risk factor 1 based upon his use of forcible compulsion constituted improper "double counting" because he also was assessed points for risk factor 5 based upon the victim's age is without merit (see People v Mendez, 60 AD3d 923 [2009]; see also People v Pietarniello, 53 AD3d 475, 476 [2008]). Furthermore, the People established, by clear and convincing evidence, that the defendant engaged in forcible compulsion in the commission of his sex offense (see Penal Law § 130.00 [8] [b]; People v Scanlon, 52 AD3d 1035 [2008]; People v Vasquez, 49 AD3d 1282 [2008]).

Accordingly, the Supreme Court properly assessed those points, and properly designated the defendant a level three sex offender. Spolzino, J.P., Santucci, Florio and Balkin, JJ., concur.