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People v. Winbush

Supreme Court, Appellate Division, First Department, New York.
Dec 9, 2014
123 A.D.3d 490 (N.Y. App. Div. 2014)

Opinion

12-09-2014

The PEOPLE of the State of New York, Respondent, v. Willie WINBUSH, Defendant–Appellant.

Steven Banks, The Legal Aid Society, New York (Lorraine Maddalo of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), for respondent.


Steven Banks, The Legal Aid Society, New York (Lorraine Maddalo of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Martin J. Foncello of counsel), for respondent.

MAZZARELLI, J.P., RENWICK, ANDRIAS, SAXE, KAPNICK, JJ.

Opinion

Order, Supreme Court, New York County (Arlene R. Silverman, J.), entered on or about May 28, 2008, which adjudicated defendant a level three sexually violent offender under the Sex Offender Registration Act (Correction Law art. 6–C), unanimously affirmed, without costs.

The court properly assessed 20 points under the risk factor for the victim's physical helplessness. The record establishes that the victim was unconscious, and hence physically unable to communicate her lack of consent, at the time police officers observed defendant sexually assaulting her (see Penal Law § 130.00[7] ). Contrary to defendant's argument, in order to assess points under this risk factor, it was not necessary to establish that the victim was physically helpless at the commencement of the sexual assault, because physical helplessness contemplates unconsciousness or a physical inability to communicate unwillingness to an act at any time during a sexual assault. In any event, the record also supports the inference that the victim was unconscious from the outset of the attack.


Summaries of

People v. Winbush

Supreme Court, Appellate Division, First Department, New York.
Dec 9, 2014
123 A.D.3d 490 (N.Y. App. Div. 2014)
Case details for

People v. Winbush

Case Details

Full title:The PEOPLE of the State of New York, Respondent, v. Willie WINBUSH…

Court:Supreme Court, Appellate Division, First Department, New York.

Date published: Dec 9, 2014

Citations

123 A.D.3d 490 (N.Y. App. Div. 2014)
123 A.D.3d 490
2014 N.Y. Slip Op. 8582

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