People v. Johnson

People v Johnson (2023 NY Slip Op 06219)

People v Johnson

2023 NY Slip Op 06219

Decided on December 05, 2023

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 and Entered: December 05, 2023
Before: Kern, J.P., Gesmer, Moulton, Kennedy, Higgitt, JJ.
Ind. No. 1727/18 Appeal No. 1149 Case No. 2021-00825

Twyla Carter, The Legal Aid Society, New York (Simon Greenberg of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Shera Knight of counsel), for respondent.

Order, Supreme Court, Bronx County (Bahaati E. Pitt, J.), entered on or about January 26, 2021, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly assessed defendant 10 points under the risk factor for forcible compulsion. The case summary and presentence report provided clear and convincing evidence to support the imposition of the points, given their statements that the 12-year-old victim had reported that defendant grabbed her by the arm, took her into the bathroom, pulled down her pants, and pushed her to the ground before raping her, and that he punched her in the face when she struggled (see People v Mingo, 12 NY3d 563, 572-573 [2009]; see also People v Hernandez, 117 AD3d 524, 524 [1st Dept 2014], lv denied 24 NY3d 902 [2014]). The court was entitled to credit the victim's initial account of the incident and disregard her subsequent recantations under the circumstances of this case.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: December 5, 2023