People v. Delacruz

212 A.D.3d 469, 179 N.Y.S.3d 896, 2023 NY Slip Op 00165

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 12, 2023
• Docket: Ind. No. 52715C/08 52715C/08 Appeal No. 17071 Case No. 2018-3792
• Status: Published

Opinion

People v Delacruz (2023 NY Slip Op 00165)

People v Delacruz

2023 NY Slip Op 00165

Decided on January 12, 2023

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: January 12, 2023
Before: Manzanet-Daniels, J.P., Kapnick, Singh, Mendez, Rodriguez, JJ.

Ind. No. 52715C/08 52715C/08 Appeal No. 17071 Case No. 2018-3792

[*1]The People of the State of New York, Respondent,

v

Erasmo Delacruz, Defendant-Appellant.

Janet E. Sabel, The Legal Aid Society, New York (Harold V. Ferguson, Jr. of counsel), for appellant.

Darcel D. Clark, District Attorney, Bronx (Reva Grace Phillips of counsel), for respondent.

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about September 30, 2015, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously modified, on the law, to the extent of reducing the adjudication to level one, and otherwise affirmed, without costs.

As the People concede, the victim's testimony that she was "fighting" with defendant, trying to push him away, and shouting "stop" during the sexual assault failed to support a finding that the victim was physically helpless. Removal of the 20 points

assessed under the corresponding risk factor renders defendant a level one offender.THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: January 12, 2023