Opinion
992 KA 19-01363
02-05-2021
The PEOPLE of the State of New York, Respondent, v. Bradley B. ORLOPP, Defendant-Appellant.
BELLETIER LAW OFFICE, SYRACUSE (ANTHONY BELLETIER OF COUNSEL), FOR DEFENDANT-APPELLANT. MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (R. MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
BELLETIER LAW OFFICE, SYRACUSE (ANTHONY BELLETIER OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL D. CALARCO, DISTRICT ATTORNEY, LYONS (R. MICHAEL TANTILLO OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from 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 ([SORA] Correction Law § 168 et seq. ), defendant contends that County Court erred in assessing points under both risk factor 5 and risk factor 6. We reject that contention. "The assessment of points for both the age of the victim under risk factor 5 and the fact that she was asleep and therefore physically helpless under risk factor 6 did not constitute impermissible double counting" ( People v. Augsbury , 156 A.D.3d 1487, 1488, 67 N.Y.S.3d 367 [4th Dept. 2017], lv denied 31 N.Y.3d 903, 2018 WL 1527815 [2018] [internal quotation marks omitted]). "A person who is asleep or unable to communicate as a result of voluntary intoxication is considered to be physically helpless" ( People v. Bjork , 105 A.D.3d 1258, 1260, 963 N.Y.S.2d 472 [3d Dept. 2013], lv denied 21 N.Y.3d 1040, 972 N.Y.S.2d 538, 995 N.E.2d 854 [2013], cert denied 571 U.S. 1213, 134 S.Ct. 1306, 188 L.Ed.2d 328 [2014] ; see generally Penal Law § 130.00 [7] ; People v. Edison , 167 A.D.3d 769, 770-771, 89 N.Y.S.3d 314 [2d Dept. 2018], lv denied 33 N.Y.3d 947, 100 N.Y.S.3d 172, 123 N.E.3d 831 [2019] ). Inasmuch as the evidence showed that the victim was asleep due to intoxication at the time defendant engaged in sexual contact with her, the People established that "the victim's physical helplessness was not the result of, or in any way connected with, her age" ( People v. Caban , 61 A.D.3d 834, 835, 877 N.Y.S.2d 403 [2d Dept. 2009], lv denied 13 N.Y.3d 702, 2009 WL 2762650 [2009] ; see e.g. Augsbury , 156 A.D.3d at 1488, 67 N.Y.S.3d 367 ; People v. Edwards , 93 A.D.3d 1210, 1211, 940 N.Y.S.2d 417 [4th Dept. 2012] ; cf. People v. Fisher , 22 A.D.3d 358, 358-359, 803 N.Y.S.2d 45 [1st Dept. 2005] ).
Defendant further contends that the court should have granted him a downward departure from his presumptive risk level because he did not have any prior sex offense convictions, the instant offense did not involve forcible compulsion, and the victim initially told the police that the sexual encounter was consensual. As a preliminary matter, we conclude that defendant's contention is not preserved for our review. Although defense counsel challenged risk factor determinations, he "never asked [the] [c]ourt to use its discretion to depart from the Board's recommendation. He made only legal arguments, directed at the interpretation of the Guidelines" or whether the People met a particular burden of proof ( People v. Johnson , 11 N.Y.3d 416, 421, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008] [emphasis added]; cf. People v. George , 141 A.D.3d 1177, 1178, 35 N.Y.S.3d 625 [4th Dept. 2016] ). In any event, we conclude that defendant "failed to prove, by a preponderance of the evidence, a ‘mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines’ " ( People v. Cox , 181 A.D.3d 1184, 1186, 122 N.Y.S.3d 205 [4th Dept. 2020], lv denied 35 N.Y.3d 909, 2020 WL 3467489 [2020] ; see Augsbury , 156 A.D.3d at 1487-1488, 67 N.Y.S.3d 367 ; see generally People v. Gillotti , 23 N.Y.3d 841, 861-862, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ).
Finally, we reject defendant's contention that he was denied effective assistance of counsel. Although "[a] sex offender facing risk level classification under SORA has a right to the effective assistance of counsel" ( People v. Willingham , 101 A.D.3d 979, 979, 956 N.Y.S.2d 165 [2d Dept. 2012] ), we conclude that, "viewing the evidence, the law and the circumstances of this case in totality and as of the time of representation, defendant received effective assistance of counsel" ( People v. Russell , 115 A.D.3d 1236, 1236, 982 N.Y.S.2d 271 [4th Dept. 2014] ).