| People v Stewart |
| 2009 NY Slip Op 04515 [63 AD3d 1588] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Carl Stewart,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from an order of the Erie County Court (Michael F. Pietruszka, J.), enteredSeptember 4, 2008. The order determined that defendant is a level two risk pursuant to the SexOffender Registration Act.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: On appeal from an order determining that he is a level two risk under the SexOffender Registration Act (Correction Law § 168 et seq.), defendant contends thatCounty Court erred in refusing to deduct 10 points assessed by the Board of Examiners of SexOffenders for forcible compulsion because it is not an element of the crimes of which he wasconvicted. We reject that contention (see People v Feeney, 58 AD3d 614 [2009]; People v LaRock, 45 AD3d 1121,1122-1123 [2007]). We conclude, based on the case summary and the presentence report, thatthe assessment of points under that risk factor is supported by clear and convincing evidence (see People v Richards, 50 AD3d1329 [2008], lv denied 10 NY3d 715 [2008]; LaRock, 45 AD3d at 1123). Inany event, the presumptive classification of defendant as a level two risk would not change evenin the event that those points were deducted, and the court properly rejected the contention ofdefendant that a downward departure was warranted based either upon his age (see People v Mothersell, 26 AD3d620, 621 [2006]), or his postrelease conduct (see People v Hamelinck, 23 AD3d 1060 [2005]).Present—Scudder, P.J., Hurlbutt, Peradotto, Green and Gorski, JJ.