| People v Jordan |
| 2009 NY Slip Op 03975 [62 AD3d 1176] |
| May 21, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ShawnJordan, Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Christine M. Rudy, Law Intern), forrespondent.
Garry, J. Appeal from an order of the County Court of Rensselaer County (Jacon, J.), enteredMay 14, 2008, which classified defendant a risk level three sex offender pursuant to the SexOffender Registration Act.
In 2006, defendant pleaded guilty to two counts of course of sexual conduct against a childin the second degree and received a prison sentence. With his release from prison nearing, theBoard of Examiners of Sex Offenders assessed defendant as a risk level two sex offender underthe terms of the Sex Offender Registration Act (see Correction Law art 6-C). CountyCourt ultimately classified defendant as a risk level three sex offender, agreeing with the Peoplethat additional points should have been added to defendant's risk factor score due to his use offorcible compulsion in the commission of his crimes (see e.g. People v Dorato, 291AD2d 580, 580-581 [2002]). Defendant appeals.
We affirm. Initially, we reject defendant's argument that County Court failed to set forth itsfindings of fact and conclusions of law on the record. Defendant did not dispute any of the riskfactor points assessed by the Board, even after it became clear that the People sought to addadditional points, and he consented to a risk level two classification. As such, any issueregarding County Court's failure to address those risk factors in detail is not properly before us(see People v Tilley, 305 AD2d 1041, 1041 [2003], lv denied 100 NY2d 588[2003]). Defendant [*2]did dispute the assessment of additionalpoints, but the court fully explained on the record its decision in that regard. As "the court's oralfindings are clear, supported by the record and sufficiently detailed to permit intelligent appellatereview," remittal is unnecessary (Peoplev Roberts, 54 AD3d 1106, 1106-1107 [2008], lv denied 11 NY3d 713 [2008]).
Turning to the merits, defendant's use of forcible compulsion must be demonstrated by clearand convincing evidence (see Correction Law § 168-n [3]; People v Richards, 50 AD3d1329, 1330 [2008], lv denied 10 NY3d 715 [2008]). A victim's age alone does notpermit a finding of forcible compulsion (see Sex Offender Registration Act: RiskAssessment Guidelines and Commentary, at 8 [2006]). Instead, the existence of forciblecompulsion depends upon the victim's state of mind, "and relevant factors include the age of thevictim, the relative size and strength of the defendant and victim, and the nature of thedefendant's relationship to the victim" (People v Sehn, 295 AD2d 749, 750 [2002], lvdenied 98 NY2d 732 [2002]; see Penal Law § 130.00 [8]).
The People relied upon the notes from an investigator's interview with the victims, whichwere properly considered (see People v Richards, 50 AD3d at 1330; People v Hegazy, 25 AD3d 675,676 [2006]). Defendant was significantly older than both victims and was their uncle andbabysitter. The victims stated that defendant threatened to keep them from going outside, lockthem outside, ground them or confine them to their rooms if they refused to engage in sexualacts. In at least one instance, defendant made good on his threats. County Court properlydetermined from these circumstances that defendant overcame the victims' resistance by forciblecompulsion and we perceive no error in its assessment of defendant as a risk level three sexoffender (see People v Sehn, 295 AD2d at 750-751; People v Dehler, 216 AD2d643, 644-645 [1995], lv denied 86 NY2d 734 [1995]).
Cardona, P.J., Peters, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed,without costs.