People v. Andrews

136 A.D.3d 880, 24 N.Y.S.3d 920

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 17, 2016
• Docket: 2015-02105
• Status: Published

Opinion

— Appeal by the defendant from an order of the Supreme Court, Westchester County (Cacace, J.), dated February 3, 2015, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.

Ordered that the order is affirmed, without costs or disbursements.

Contrary to the defendant’s contention, the Supreme Court properly assessed 30 points under risk factor 5 based on the fact that the victim was 10 years of age or less. The defendant had pleaded guilty to rape in the first degree in violation of Penal Law § 130.35 (3), which provides that a person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person who is less than 11 years old. The fact that the victim was 10 years of age or less was a fact “elicited at the time of entry of a plea of guilty” (Correction Law § 168-n [3]). As such, this fact “shall be deemed established by clear and convincing evidence and shall not be relitigated” (id.; see People v Martinez, 125 AD3d 735, 736 [2015]; People v Vasquez, 89 AD3d 816, 816-817 [2011]; People v Davenport, 38 AD3d 634, 635 [2007]).

Balkin, J.P., Dickerson, Hall and Roman, JJ., concur.