People v. Winbush

123 A.D.3d 490, 997 N.Y.S.2d 71

Opinion

Order, Supreme Court, New York County (Arlene R. Silver-man, J.), entered on or about May 28, 2008, which adjudicated defendant a level three sexually violent offender under the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

The court properly assessed 20 points under the risk factor for the victim’s physical helplessness. The record establishes that the victim was unconscious, and hence physically unable to communicate her lack of consent, at the time police officers observed defendant sexually assaulting her (see Penal Law § 130.00 [7]). Contrary to defendant’s argument, in order to assess points under this risk factor, it was not necessary to establish that the victim was physically helpless at the commencement of the sexual assault, because physical helplessness contemplates unconsciousness or a physical inability to communicate unwillingness to an act at any time during a sexual assault. In any event, the record also supports the inference that the victim was unconscious from the outset of the attack.

Concur — Mazzarelli, J.P., Renwick, Andrias, Saxe and Kapnick, JJ.