Opinion
2012-12-12
PEOPLE of State of New York, respondent, v. Parrish JONES, appellant.
Lynn W.L. Fahey, New York, N.Y. (William Kastin of counsel; Miles Pope on the brief), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeannette Lifschitz, and Tina Grillo of counsel), for respondent.
Lynn W.L. Fahey, New York, N.Y. (William Kastin of counsel; Miles Pope on the brief), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jeannette Lifschitz, and Tina Grillo of counsel), for respondent.
Appeal by the defendant, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Grosso, J.), dated November 18, 2010, as, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6–C.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
The Supreme Court's determination, pursuant to Correction Law article 6–C, to assess the defendant 20 points for risk factor 6 was supported by clear and convincing evidence based, inter alia, on facts contained in the case summary prepared by the Board of Examiners of Sex Offenders*919and the risk assessment instrument ( see People v. Wiedeman, 51 A.D.3d 888, 888–889, 856 N.Y.S.2d 884). The case summary establishes by clear and convincing evidence that, immediately preceding the sexual assault, the victim was choked until she fell to the floor, stopped moving, and was in and out of consciousness during the sexual assault. As such, she was physically helpless within the meaning of Penal Law § 130.00(7) when she was sexually assaulted ( see generally People v. Cecunjanin, 16 N.Y.3d 488, 492, 922 N.Y.S.2d 258, 947 N.E.2d 149;People v. Battease, 74 A.D.3d 1571, 1573–1574, 904 N.Y.S.2d 241;People v. Chapman, 54 A.D.3d 507, 509–510, 862 N.Y.S.2d 660;People v. Green, 298 A.D.2d 143, 747 N.Y.S.2d 767;People v. Conto, 218 A.D.2d 665, 666, 630 N.Y.S.2d 542;People v. Huurre, 193 A.D.2d 305, 306–307, 603 N.Y.S.2d 179,affd.84 N.Y.2d 930, 621 N.Y.S.2d 511, 645 N.E.2d 1210).
The defendant's contention that assessing him 20 points under risk factor 5 and 20 points under risk factor 6 constitutes improper double counting is unpreserved for appellate review ( see People v. Fredlund, 38 A.D.3d 636, 832 N.Y.S.2d 592) and, in any event, without merit ( see People v. Caban, 61 A.D.3d 834, 835, 877 N.Y.S.2d 403).
Accordingly, the defendant was properly designated a level three sex offender.
In light of our determination, we need not reach the defendant's remaining contention.