Opinion
7766 Ind. 819/13
12-04-2018
The PEOPLE of the State of New York, Respondent, v. Leondriss JEFFREYS, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Elizabeth B. Emmons of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Amanda K. Regan of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (Elizabeth B. Emmons of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Amanda K. Regan of counsel), for respondent.
Acosta, P.J., Mazzarelli, Gesmer, Singh, JJ.
Order, Supreme Court, New York County, (Robert M. Stolz, J.), entered on or about October 9, 2014, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.
Defendant was properly assessed 20 points under the risk factor for the victim's physical helplessness. The record establishes that the victim was asleep when defendant sexually assaulted her and only woke up as the result of the assault (see People v. Winbush, 123 A.D.3d 490, 997 N.Y.S.2d 71 [1st Dept. 2014], lv denied 24 N.Y.3d 916, 2015 WL 688481 [2015] ). Defendant was also properly assessed 15 points under the risk factor for substance abuse. Defendant admitted that he was under the influence of alcohol during the crime, and this is sufficient to support the point assessment (see People v. Watson, 112 A.D.3d 501, 502, 977 N.Y.S.2d 24 [1st Dept. 2013], lv denied 22 N.Y.3d 863, 2014 WL 702166 [2014] ).
The court providently exercised its discretion when it declined to grant a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument or were outweighed by the egregious circumstances of the underlying offense.