Opinion
2012-06-27
PEOPLE of State of New York, respondent, v. William DUFF, appellant.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Anne E. Oh of counsel), for respondent.
Robert C. Mitchell, Riverhead, N.Y. (James H. Miller III of counsel), for appellant. Thomas J. Spota, District Attorney, Riverhead, N.Y. (Anne E. Oh of counsel), for respondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated January 25, 2010, which, after a hearing, designated him a level three sexually violent offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed, without costs or disbursements.
In this proceeding to determine the defendant's risk level pursuant to the Sex Offender Registration Act ( see Correction Law § 168–a et seq.), the County Court properly relied upon the complainant's sworn statement to the police and grand jury testimony ( see Correction Law § 168–n[3]; People v. Pettigrew, 14 N.Y.3d 406, 408–409, 901 N.Y.S.2d 569, 927 N.E.2d 1053;People v. Mingo, 12 N.Y.3d 563, 574, 883 N.Y.S.2d 154, 910 N.E.2d 983;People v. Carleo, 82 A.D.3d 1067, 1069, 918 N.Y.S.2d 795;People v. Neal, 73 A.D.3d 1145, 900 N.Y.S.2d 916;People v. Bolton, 50 A.D.3d 990, 857 N.Y.S.2d 190). Moreover, the County Court properly assessed the defendant 20 points under risk factor 6, as the complainant's sworn statement to the police and grand jury testimony established that the complainant was asleep at the beginning of the incident and was thus *892“physically helpless” ( see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 11 [2006 ed.]; Penal Law § 130.00[7]; People v. Edwards, 93 A.D.3d 1210, 1211, 940 N.Y.S.2d 417;People v. Howell, 82 A.D.3d 857, 918 N.Y.S.2d 364;People v. Caban, 61 A.D.3d 834, 835, 877 N.Y.S.2d 403;People v. Vaughn, 26 A.D.3d 776, 777, 809 N.Y.S.2d 718;People v. Irving, 151 A.D.2d 605, 605–606, 542 N.Y.S.2d 693).