People v. Duff

96 A.D.3d 1031, 946 N.Y.S.2d 891

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 27, 2012
• Status: Published

Opinion

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated January 25, 2010, which, after a hearing, designated him a level three sexually violent offender pursuant to Correction Law article 6-C.

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

In this proceeding to determine the defendant’s risk level pursuant to the Sex Offender Registration Act (see Correction Law § 168-a et seq.), the County Court properly relied upon the complainant’s sworn statement to the police and grand jury testimony (see Correction Law § 168-n [3]; People v Pettigrew, 14 NY3d 406, 408-409 [2010]; People v Mingo, 12 NY3d 563, 574 [2009]; People v Carleo, 82 AD3d 1067, 1069 [2011]; People v Neal, 73 AD3d 1145 [2010]; People v Bolton, 50 AD3d 990 [2008]). Moreover, the County Court properly assessed the defendant 20 points under risk factor 6, as the complainant’s sworn statement to the police and grand jury testimony established that the complainant was asleep at the beginning of the incident and was thus “physically helpless” (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 11 [2006]; Penal Law § 130.00 [7]; People v Edwards, 93 AD3d 1210, 1211 [2012]; People v Howell, 82 AD3d 857 [2011]; People v Caban, 61 AD3d 834, 835 [2009]; People v Vaughn, 26 AD3d 776, 777 [2006]; People v Irving, 151 AD2d 605, 605-606 [1989]). Dillon, J.P., Balkin, Belen and Chambers, JJ., concur.