People v. Wilkes

48 A.D.3d 777, 851 N.Y.S.2d 359

Opinion

Appeal by the defendant from an order of the County Court, Westchester County (R. Bellantoni, J.), dated November 3, 2006, 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.

The defendant was appropriately assessed points based on the victim’s physical helplessness (see People v Davenport, 38 AD3d 634 [2007]), and for having inflicted a physical injury on her (see People v Bogan, 70 NY2d 860; People v Cannon, 300 AD2d 407 [2002]). The County Court’s determination to designate the defendant a level three sex offender was supported by clear and convincing evidence (see People v Smith, 46 AD3d 791 [2007]; People v Morris, 33 AD3d 778 [2006]).

The issue of whether an automatic override is applicable in this case has been rendered academic given the determination that the defendant is, by score, a level three sex offender. Spolzino, J.R, Santucci, Angiolillo and Garni, JJ., concur.