People v Gray

People v Gray 2016 NY Slip Op 07011 Decided on October 26, 2016 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 26, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
LEONARD B. AUSTIN
SANDRA L. SGROI
COLLEEN D. DUFFY, JJ.
2014-03058

[*1]People of State of New York, respondent,

v

Herbert Gray, appellant.

Seymour W. James, Jr., New York, NY (Adrienne M. Gantt of counsel), for appellant.

Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Morgan J. Dennehy of counsel; Marina Dimitry on the brief), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Brennan, J.), dated March 21, 2014, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.

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

Contrary to the defendant's contention, the People established, by clear and convincing evidence, that he engaged in forcible compulsion in the commission of the sex offense for which was convicted (see Penal Law § 130.00[8][b]; People v Scanlon, 52 AD3d 1035, 1038; People v Vasquez, 49 AD3d 1282, 1283-1284). Thus, the defendant was correctly assessed 10 points on the risk assessment instrument under risk factor 1, "used forcible compulsion." With the inclusion of these 10 points in his risk assessment score, the defendant was properly designated a level two sex offender (see People v Fowara, 128 AD3d 932; People v Johnson, 77 AD3d 548, 548-549; People v Feeney, 58 AD3d 614, 615; People v LaRock, 45 AD3d 1121, 1122).

RIVERA, J.P., AUSTIN, SGROI and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court