Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, Second DepartmentMay 16, 2005
18 A.D.3d 637 (N.Y. App. Div. 2005)
18 A.D.3d 637795 N.Y.S.2d 332

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  • People v. Oliver

    …These factors also militate against a finding that forcible compulsion occurred. People v. Dominie, 42 AD3d…

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May 16, 2005.

Appeal by the defendant from an order of the Supreme Court, Kings County (Barros, J.), dated March 3, 2004, which, pursuant to Correction Law article 6-c, designated him a level three sex offender.

Before: H. Miller, J.P., Cozier, Crane and Skelos, JJ., concur.

Ordered that the order is reversed on the law, without costs or disbursements, and the defendant is reclassified as a level two sex offender.

The People failed to establish by clear and convincing evidence that the defendant used "forcible compulsion" as that term is defined in Penal Law § 130.00 (8) in the commission of the attempted rape of the complainant ( see Doe v. Pataki, 3 F Supp 2d 456, 472; Correction Law § 168-n). Accordingly, the 10-point assessment under risk factor 1 for "Used forcible compulsion" must be deducted bringing the defendant's total risk factor score to 105, which falls within level two. Thus, the defendant is reclassified as a level two sex offender ( see People v. Collazo, 7 AD3d 595).

The defendant's remaining contention is without merit.