Opinion
Ind. 52715C/08 Case No. 2018–3792 17071
01-12-2023
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.
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.
Manzanet–Daniels, J.P., Kapnick, Singh, Mendez, Rodriguez, JJ.
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.