People v. Davis

May 6, 2008
Versions:51 A.D.3d 442
857 N.Y.S.2d 542

The circumstances of the case warranted separate assessments of points under the factor based on the age of the victim, who was 10 years old at the time of the incident, and under the factor based on the physical helplessness of the victim, who was asleep during the sexual assault (see People v Vaughn, 26 AD3d 776 [2006]; People v Frisbee, 3 Misc 3d 507, 510 [2004]). The physical helplessness had nothing to do with her age, and there was no improper double counting.

Even if we were to accept defendant‘s argument concerning the assessment of points for the drug or alcohol abuse factor, he would remain a level two sex offender. In any event, we reject that argument (see People v Wilkens, 33 AD3d 399 [2006], lv denied 8 NY3d 801 [2007]).

To the extent defendant is also arguing in favor of a downward departure, he has not established the requisite special circumstances. Concur—Lippman, P.J., Saxe, Buckley and Acosta, JJ.