People v. Alvarez-Perez

2017 NY Slip Op 7771, 155 A.D.3d 430, 63 N.Y.S.3d 233

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 2017
• Docket: 4893 2471/14
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Marc J. Whiten, J.), entered on or about June 15, 2016, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Clear and convincing evidence supports the assessment of 20 points for the victim’s physical helplessness. The court properly assessed these points based on facts elicited in defendant’s plea allocution in the underlying case, which “shall be deemed established by clear and convincing evidence and shall not be relitigated” (Correction Law § 168-n [3]). In addition, the sentencing minutes, and evidence in the case summary, showed that part of the sexual contact occurred while the victim was not merely intoxicated, but was physically helpless within the meaning of Penal Law § 130.00 (7). The assessment of points for this factor while also assessing points for forcible compulsion was not inconsistent, because the victim’s account demonstrated both physical helplessness and forcible compulsion, at different times during the incident.

Concur—Manzanet-Daniels, J.P., Andrias, Gische, Kern and Singh, JJ.