| People v Smith |
| 2015 NY Slip Op 07331 |
| Decided on October 8, 2015 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on October 8, 2015
Mazzarelli, J.P., Sweeny, Manzanet-Daniels, Gische, JJ.
15739 2484/90
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.
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 NY2d 500, 505-506 [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 NY3d 841 [2014]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 8, 2015 SEPTEMBER 29, 2015
CLERK