Robert S. Dean, Center for Appellate Litigation, New York (Jody Ratner of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Jeffrey A. Wojcik of counsel), for respondent.

Order, Supreme Court, New York County (Thomas Farber, J.), entered on or about March 7, 2014, which adjudicated defendant a level two sexually violent predicate sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously modified, as a matter of discretion in the interest of justice, to the extent of remanding for a further hearing on defendant's request for a downward departure, and otherwise affirmed, without costs.

The court properly assessed defendant 10 points under the risk factor for forcible compulsion. Defendant, taking advantage of a crowded subway car, pressed up against a trapped victim, moved his penis against her buttocks, breathed heavily and made loud noises over the course of several minutes, in a manner that caused her to be aware that she was being sexually assaulted and too scared to say anything. Although there was insufficient evidence of forcible compulsion by physical force (see People v Mack, 18 NY3d 929 [2012]), the evidence was sufficient to show forcible compulsion by an implied threat that placed the victim in fear of physical injury.

However, defendant proved, by a preponderance of the evidence, mitigating circumstances related to his debilitating medical condition (see People v Stevens, 55 AD3d 892 [2d Dept 2008]). We remand the matter for a further hearing with respect to his current medical condition and future prognosis, given the concern that defendant could recover his capability of reoffending. Concur—Tom, J.P., Renwick, Saxe and Kapnick, JJ.