Opinion
2012-03-16
The PEOPLE of the State of New York, Respondent, v. Alvin G. EDWARDS, Defendant–Appellant.
Theodore W. Stenuf, Minoa, for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
Theodore W. Stenuf, Minoa, for Defendant–Appellant. William J. Fitzpatrick, District Attorney, Syracuse (Victoria M. White of Counsel), for Respondent.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
MEMORANDUM:
On appeal from an order determining that he is a level three risk pursuant to the Sex Offender Registration Act (Correction Law § 168 et seq.), defendant contends that County Court erred in assessing 30 points against him under risk factor 5, for the age of the victim, and 20 points against him under risk factor 6, for the physical helplessness of the victim. We reject those contentions. Although defendant pleaded guilty to a count of the indictment alleging that he raped his stepdaughter when she was 13 years old, it is well settled that, in assessing a defendant's risk level, the court is not limited to the crime to which the defendant pleaded guilty ( see People v. Scott, 71 A.D.3d 1417, 1417–1418, 896 N.Y.S.2d 549, lv. denied 14 N.Y.3d 714, 2010 WL 2365708; People v. Hubel, 70 A.D.3d 1492, 1493, 894 N.Y.S.2d 633). The court may also consider “reliable hearsay,” including the case summary prepared by the Board of Examiners of Sex Offenders ( People v. Hucks, 72 A.D.3d 1608, 1609, 898 N.Y.S.2d 903, lv. denied 15 N.Y.3d 706, 2010 WL 3430834; see People v. Cunningham, 68 A.D.3d 1795, 1795–1796, 890 N.Y.S.2d 839, lv. denied 15 N.Y.3d 709, 2010 WL 3702555). Here, the case summary stated, and the indictment alleged, that defendant engaged in a course of sexual conduct with the victim that started when she was seven years old. The court therefore properly assessed 30 points against defendant under risk factor 5.
Points may be assessed under risk factor 6 in the event that the victim was “physically helpless” when the sexual crime was committed. Here, defendant pleaded guilty to rape in the first degree pursuant to Penal Law § 130.35(2). A person is guilty of that crime “when he or she engages in sexual intercourse with another person ... [w]ho is incapable of consent by reason of being physically helpless” ( id.). According to the case summary, the victim alleged that she was sleeping on one occasion when defendant began to rape her. We have repeatedly concluded that a victim who is asleep during a sexual assault or “the beginning portion of the sexual assault” is physically helpless for the purposes of risk factor 6 ( People v. Vaughn, 26 A.D.3d 776, 777, 809 N.Y.S.2d 718; see People v. Cullen, 60 A.D.3d 1466, 875 N.Y.S.2d 419, lv. denied 12 N.Y.3d 712, 2009 WL 1543931; People v. Harris, 46 A.D.3d 1445, 1446, 848 N.Y.S.2d 792, lv. denied 10 N.Y.3d 707, 858 N.Y.S.2d 654, 888 N.E.2d 396).
Finally, there is no merit to defendant's further contention that the court, by assessing points against him under risk factors 5 and 6, engaged in impermissible double-counting. “Points may be properly [assessed] under both [risk factors] where[, as here,] a child victim is ... asleep at the beginning of the sexual offense” ( People v. Rhodehouse, 88 A.D.3d 1030, 1032, 930 N.Y.S.2d 105; see People v. Ramirez, 53 A.D.3d 990, 990–991, 863 N.Y.S.2d 114, lv. denied 11 N.Y.3d 710, 868 N.Y.S.2d 602, 897 N.E.2d 1087; People v. Davis, 51 A.D.3d 442, 857 N.Y.S.2d 542, lv. denied 11 N.Y.3d 703, 864 N.Y.S.2d 807, 894 N.E.2d 1198).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.