Majority
After a hearing pursuant to the Sex Offender Registration Act to determine the defendant’s risk level (see Correction Law § 168-a et seq.), the County Court properly assessed the defendant 20 points under risk factor 6 based on the complainant’s grand jury testimony that she was sleeping at the beginning of the incident and was thus “physically helpless” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 11 [2006]; see Penal Law § 130.00 [7]; People v Caban, 61 AD3d 834 , 835 [2009]). Moreover, contrary to the defendant’s contention, the imposition of 20 points under risk factor 6 based on the complainant’s physical helplessness and the imposition of 10 points under risk factor 1 based on the defendant’s use of forcible compulsion during the incident did not constitute double-counting. The complainant stated that the defendant continued to force himself upon her after she had awakened, and the two factors represent “cumulative, not duplicative, predictors of re-offense” (People v Pietarniello, 53 AD3d 475 , 476 [2008]; see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 7, 11 [2006]).
We agree with the defendant that it was improper for the
Accordingly, the County Court properly designated the defendant a level two sex offender. Covello, J.E, Chambers, Lott and Cohen, JJ., concur.
Cases cited
- People v. Caban 61 AD3d 834 at 835 p. 857
- People v. Pietarniello 53 AD3d 475 at 476 p. 857
- People v. Gardner 59 AD3d 604 at 605 p. 858
- People v. Ferguson 53 AD3d 571 at 572 p. 858
- People v. Mabee 69 AD3d 820 p. 858
- People v. Mercado 55 AD3d 583 p. 858