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THE CRIME TO WHICH DEFENDANT PLED DID NOT HAVE A FORCIBLE COMPULSION ELEMENT SO 10 POINTS SHOULD NOT HAVE BEEN ASSESSED ON THAT GROUND; HOWEVER THE MATTER WAS SENT BACK BECAUSE AN UPWARD DEPARTURE MIGHT BE WARRANTED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the offense to which defendant pled guilty, criminal sexual act in the first degree, does not have forcible compulsion as an element and therefore the risk assessment must be reduced by 10 points. However the court noted that an upward department might be appropriate and sent the matter back:

… [T]he court erred in that assessment inasmuch as defendant pleaded guilty to criminal sexual act in the first degree under subdivision (3) of Penal Law § 130.50, which does not require evidence of forcible compulsion … , and there was no other evidence in the record establishing that defendant used forcible compulsion in committing the crime. When those 10 points are subtracted, defendant’s total score makes him a presumptive level two risk.

Nevertheless, we note that an upward departure from the presumptive level may be warranted, i.e., there may be evidence of “an aggravating . . . factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines”… . Here, however, “because defendant was determined to be a level three sex offender, County Court had no reason to consider whether clear and convincing evidence exists to warrant such a departure” … . People v Weber, 2019 NY Slip Op 07197, Fourth Dept 10-4-19

 

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