| People v Richards |
| 2008 NY Slip Op 03347 [50 AD3d 1329] |
| April 17, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Bobby J.Richards, Appellant. |
—[*1] Gerald F. Mollen, District Attorney, Binghamton (Joann Rose Parry of counsel), forrespondent.
Stein, J. Appeal from an order of the County Court of Broome County (Mathews, J.), enteredMay 3, 2007, which classified defendant as a risk level three sex offender pursuant to the SexOffender Registration Act.
Defendant pleaded guilty to incest and subsequently served an unspecified period of time in alocal jail. In conjunction therewith, the Board of Examiners of Sex Offenders prepared a riskassessment instrument in which defendant was assigned 155 points. At the hearing that ensued,defendant successfully challenged the points assessed for risk factors 11 (drug or alcohol abuse),12 (acceptance of responsibility) and 14 (release without supervision), reducing his riskassessment score to 115, which presumptively classified him as a risk level three sex offender.Upon finding that no departure from the risk level assessment was warranted, County Courtclassified defendant as a risk level three sex offender, prompting this appeal.
Defendant challenges the 10 points assessed for forcible compulsion, as well as the 20 pointsassessed for a continuing course of sexual misconduct, primarily contending that the single act ofincest to which he pleaded guilty and the victim's statement regarding the force allegedlythreatened are insufficient to warrant the imposition of the assigned points. We cannot agree. Thecase summary, presentence investigation report, incident report, investigation notes [*2]and the victim's sworn statement to the police, all of which wereproperly considered by County Court (see People v LaRock, 45 AD3d 1121, 1122 [2007]; People v Dominie, 42 AD3d 589,590 [2007]), provide clear and convincing evidence (see Correction Law § 168-n[3]) that defendant used forcible compulsion, i.e., threats, to compel the victim's compliance (see People v Pratt, 42 AD3d 592[2007]). We reach a similar conclusion regarding the points assessed for a continuing course ofsexual misconduct, as the record reflects that the April 2005 incident that formed the basis fordefendant's guilty plea was neither the first nor the only sexual encounter between defendant andthe victim. Finally, based upon our review of the record as a whole, we cannot say that CountyCourt abused its discretion in determining that there were no circumstances warranting adownward departure from the presumptive classification (see People v Kaminski, 38 AD3d 1127, 1128 [2007], lvdenied 9 NY3d 803 [2007]).
Peters, J.P., Carpinello, Kane and Malone Jr., JJ., concur. Ordered that the order is affirmed,without costs.