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

31
KA 10-01402
PRESENT: SCUDDER, P.J., SMITH, LINDLEY, GREEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DOUGLAS CUMMINGS, DEFENDANT-APPELLANT.


NORMAN P. EFFMAN, PUBLIC DEFENDER, WARSAW (GREGORY A. KILBURN OF
COUNSEL), FOR DEFENDANT-APPELLANT.

GERALD L. STOUT, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF
COUNSEL), FOR RESPONDENT.


     Appeal from an order of the Wyoming County Court (Mark H. Dadd,
J.), dated May 11, 2009. The order determined that defendant is a
level three risk pursuant to the Sex Offender Registration Act.

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

     Memorandum: On appeal from an order determining that he is a
level three risk pursuant to the Sex Offender Registration Act
(Correction Law § 168 et seq.), defendant contends that he was
entitled to a downward departure from his presumptive risk level. We
reject that contention. “A departure from the presumptive risk level
is warranted where ‘there exists an aggravating or mitigating factor
of a kind or to a degree, not otherwise adequately taken into account
by the [Risk Assessment Guidelines of the Sex Offender Registration
Act]’ . . . There must exist clear and convincing evidence of the
existence of special circumstance[s] to warrant an upward or downward
departure” (People v Guaman, 8 AD3d 545). Here, defendant failed to
establish his entitlement to a downward departure from the presumptive
risk level. The jury convicted defendant of rape by forcible
compulsion (Penal Law § 130.35 [1]). Forcible compulsion means to
compel by either the use of physical force or a threat, express or
implied, that places another in fear of, inter alia, immediate death
or physical injury (see Penal Law § 130.00 [8]). By virtue of its
verdict, the jury necessarily found that defendant used either
physical force or a threat of such force to overcome the victim’s lack
of consent.

     Contrary to the contention of defendant, a downward departure is
not warranted on the ground that, subsequent to his conviction, the
Legislature amended article 130 of the Penal Law (see L 2000, ch 1).
That legislation, in relevant part (see L 2000, ch 1, § 32), added a
                                 -2-                            31
                                                         KA 10-01402

new subdivision to rape in the third degree, pursuant to which a
person is guilty of that crime if “[h]e or she engage[d] in sexual
intercourse with another person without such person’s consent where
such lack of consent is by reason of some factor other than incapacity
to consent” (§ 130.25 [3]). The legislation was “ ‘designed to
address the so-called date rape or acquaintance rape situations
[where] there [might] be consent to various acts leading up to the
sexual act, but at the time of the act, the victim clearly says no or
otherwise expresses a lack of consent, and a reasonable person in the
actor’s situation would understand that the victim was expressing a
lack of consent’ ” (People v Newton, 8 NY3d 460, 463). Defendant
contends that the new subdivision encompasses the conduct for which he
was convicted and thus renders his conduct less culpable. That
contention is without merit. A review of the legislative history
establishes that the legislation was intended to “increase[] penalties
against sex offenders . . . and close[] existing loopholes related to
sex crime prosecution” (Budget Rep on Bills, Bill Jacket, L 2000, ch
1, at 3). In addition, the legislation was intended to address “the
[former] inadequate definition of ‘lack of consent’ by expanding it to
apply where a person, at the time of an act of sexual intercourse or
deviate sexual intercourse, clearly expresses lack of consent to
engage in such acts” (Mem of Off of Attorney Gen, Bill Jacket, L 2000,
ch 1, at 5). Thus, it cannot be said that the legislation was also
intended to reduce the penalties for forcible rape.




Entered:   February 10, 2011                   Patricia L. Morgan
                                               Clerk of the Court
