People v. Harris , 848 N.Y.S.2d 792 ( 2007 )

Appeal from an order of the Supreme Court, Monroe County (Frank P. Geraci, Jr., A.J.), entered May 20, 2005. The order determined that defendant is a level three risk pursuant to the Sex Offender Registration Act.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

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 Supreme Court erred in assessing 20 points under risk factor six, for the physical helplessness of the victim, inasmuch as the victim was asleep and was not physically helpless. We reject that contention. Pursuant to Penal Law § 130.00 (7), “ ‘[physically helpless’ means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.” That definition of physically helpless is broad enough to include a sleeping victim (see People v Smith, 16 AD3d 1033, 1034 [2005], affd 6 NY3d 827 [2006], cert denied, — US —, 126 S Ct 2971 [2006]; People v Krzykowski, 293 AD2d 877, 879 [2002], lv denied 100 NY2d 643 [2003]).

We agree with defendant, however, that the court’s assessment of 20 points under risk factor 13, for his conduct while confined, is not supported by clear and convincing evidence that he engaged in sexual misconduct during his period of confinement (see Correction Law § 168-n [3]). Defendant’s conduct was at most unsatisfactory, and defendant therefore should have been assessed only 10 points under risk factor 13. Even with that 10 point reduction in the total risk factor score, however, defendant nevertheless is presumptively classified as a level three risk, and there are no mitigating circumstances to warrant a downward departure from the presumptive risk level (see generally Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [Nov. 1997]). Present— Hurlbutt, J.P., Martoche, Fahey, Peradotto and Green, JJ.