PEOPLE v. HAWKINS (2005)

Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE of State of New York, respondent, v. David HAWKINS, appellant.

Decided: May 16, 2005

HOWARD MILLER, J.P., BARRY A. COZIER, STEPHEN G. CRANE, and PETER B. SKELOS, JJ.

Laura R. Johnson, New York, N.Y. (Bonnie C. Brennan and Harold Ferguson of counsel), for appellant. Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Anthea H. Bruffee of counsel), for respondent.

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.

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[3] ). 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 A.D.3d 595, 775 N.Y.S.2d 887).

The defendant's remaining contention is without merit.

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