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People v. Hamilton

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


December 31, 2008

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
LORENZO C. HAMILTON, DEFENDANT-APPELLANT.

Appeal from an order of the Supreme Court, Monroe County (Thomas M. Van Strydonck, J.), entered January 19, 2007. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.

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.

PRESENT: HURLBUTT, J.P., MARTOCHE, FAHEY, AND GORSKI, JJ.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum

We reject the contention of defendant that Supreme Court erred in determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.). The court properly assessed 10 points for forcible compulsion based upon defendant's rape of a five-year-old victim (see generally People v LaRock, 45 AD3d 1121, 1122-1123), as well as 15 points for a prior non-violent felony and 10 points for a recent prior felony based upon defendant's plea of guilty to a class C felony prior to defendant's commission of the rape (see CPL 1.20 [13]; People v Hernandez, 93 NY2d 261, 267), and defendant thus had a score that was sufficient to render him a level three risk. Contrary to the further contention of defendant, he failed to establish his entitlement to a downward departure from the presumptive risk level "inasmuch as he failed to present the requisite clear and convincing evidence of the existence of special circumstances warranting a downward departure" (People v Marks, 31 AD3d 1142, 1143, lv denied 7 NY3d 715; see People v McDaniel, 27 AD3d 1158, lv denied 7 NY3d 703).

20081231

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