Opinion
02-11-2015
PEOPLE of State of New York, respondent, v. Michael STRZELECKI, appellant.
Michael J. Ahern, West Sayville, N.Y., for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.
Michael J. Ahern, West Sayville, N.Y., for appellant.
Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.
Opinion Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated March 27, 2014, which, after a hearing, designated him a level two sexually violent offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
Contrary to the defendant's contention, the County Court properly assessed 20 points under risk factor 4 for continuing course of sexual misconduct (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 10 [2006] ). The County Court was not limited to considering only the crimes of which the defendant was convicted in making its determination (see Correction Law § 168–n[3] ; People v. Wilson, 117 A.D.3d 1557, 1558, 985 N.Y.S.2d 384 ; People v. Feeney, 58 A.D.3d 614, 615, 871 N.Y.S.2d 340 ; People v. LaRock, 45 A.D.3d 1121, 1122, 846 N.Y.S.2d 685 ). The County Court also correctly assessed 30 points under risk factor 5 because the victim was less than 10 years old at the time of the subject sexual abuse (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 11 [2006] ), and 20 points under risk factor 6 where, as here, the victim was asleep at the beginning of the sexual assault and, thus, physically helpless (see Penal Law § 130.00[7] ; People v. Richardson, 101 A.D.3d 837, 838, 957 N.Y.S.2d 158 ; People v. Duff, 96 A.D.3d 1031, 946 N.Y.S.2d 891 ; People v. Howell, 82 A.D.3d 857, 918 N.Y.S.2d 364 ). Further, the County Court properly denied the defendant's request for a downward departure from the presumptive level two designation (see People v. Gillotti, 23 N.Y.3d 841, 845, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 ; People v. Wyatt, 89 A.D.3d 112, 131, 931 N.Y.S.2d 85 ). Accordingly, the County Court properly designated the defendant a level two sexually violent offender.
RIVERA, J.P., BALKIN, HALL and SGROI, JJ., concur.