Majority
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 [1998]; 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 AD3d 595 [2004]).