Opinion
2015-10-8
The PEOPLE of the State of New York, Respondent, v. Isaiah SMITH, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Elizabeth B. Emmons of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (John T. Hughes of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Elizabeth B. Emmons of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (John T. Hughes of counsel), for respondent.
Order, Supreme Court, New York County (Renee A. White, J.), entered on or about December 21, 2011, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art. 6–C), unanimously affirmed, without costs.
Although the evidence does not support an assessment of 30 points for use of a dangerous instrument, the court should have assessed 10 points, under the same risk factor, for use of forcible compulsion ( see People v. Coleman, 42 N.Y.2d 500, 505–506, 399 N.Y.S.2d 185, 369 N.E.2d 742 [1977] ). The court also erred in assessing 10 points under the risk factor for the recency of defendant's prior felony, since he had been released from incarceration in that case more than four years before he committed the underlying crime. Without the 30 improperly assessed points, defendant remains a level three offender with a point score of 115, and we find no basis for a downward departure ( see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). MAZZARELLI, J.P., SWEENY, MANZANET–DANIELS, GISCHE, JJ., concur.