Opinion
14423-14424 SCI No. 326/15 Case No. 2018-2130, 2018-2174, 2015-2005
10-21-2021
The PEOPLE of the State of New York, Respondent, v. DeShawn BARZEY, Defendant–Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Rachel L. Pecker of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Morgan Namian of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Rachel L. Pecker of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Morgan Namian of counsel), for respondent.
Acosta, P.J., Manzanet–Daniels, Kern, Oing, Kennedy, JJ.
Judgment, Supreme Court, Bronx County (Shari R. Michels, J.), rendered March 25, 2015, convicting defendant, upon his plea of guilty, of rape in the third degree, and sentencing him to a term of two years, with five years’ postrelease supervision, unanimously affirmed. Order, same court and Justice, entered on or about August 18, 2017, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–c), unanimously affirmed, without costs.
As to the appeal from the judgment of conviction, we do not find that defendant made a valid waiver of his right to appeal. However, we perceive no basis for reducing the sentence.
As to defendant's civil appeal from his sex offender adjudication, we conclude that the court properly assessed 20 points under the risk factor for other victim characteristics (incapacity). The People established by clear and convincing evidence that the victim suffered from physical helplessness, defendant having provided her with alcohol to the point where she vomited and fell asleep, later awakening while defendant was engaged in sexual intercourse with her (see People v. Reyes, 189 A.D.3d 1285, 134 N.Y.S.3d 212 [2d Dept. 2020], lv denied 36 N.Y.3d 910, 2021 WL 1218291 [2021] ). The victim's unequivocal account of these facts met the standard of clear and convincing evidence, and defendant's arguments to the contrary are unpersuasive. In any event, regardless of whether defendant's correct point score is 95, or 75 as he claims, he remains a level two offender, and we find no basis for a discretionary downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ).