Opinion
10216 Ind. 99063/15
10-29-2019
The PEOPLE of the State of New York, Respondent, v. Roul SANTOS, Defendant–Appellant.
The Legal Aid Society, New York (Janet E. Sabel of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Jennifer L. Watson of counsel), for respondent.
The Legal Aid Society, New York (Janet E. Sabel of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Jennifer L. Watson of counsel), for respondent.
Richter, J.P., Gische, Tom, Gesmer, Moulton, JJ.
Order, Supreme Court, Bronx County (Efrain Alvarado, J.), entered on or about May 31, 2016, which adjudicated defendant a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.
Clear and convincing evidence, including reliable hearsay, supported the court's assessment of points under the risk factor relating to the victim's physical helplessness (see People v. Mingo, 12 N.Y.3d 563, 571–573, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ; People v. Epstein, 89 A.D.3d 570, 571, 933 N.Y.S.2d 239 [1st Dept. 2011] ). The court properly relied on the case summary, the sworn arrest affidavit from the underlying out-of-state case, and information from the detective who investigated that case. The record supports the court's finding that defendant sexually assaulted the victim while she was "physically helpless," in that she was asleep when the assault began (see People v. Davis, 51 A.D.3d 442, 857 N.Y.S.2d 542 [1st Dept. 2008], lv denied 11 N.Y.3d 703, 864 N.Y.S.2d 807, 894 N.E.2d 1198 [2008] ). The documents before the court also supported its assessments under the risk factors relating to drug and alcohol abuse and lack of supervision.
The court providently exercised its discretion when it declined to grant a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). The mitigating factors cited by defendant were adequately taken into account by the risk assessment instrument, and did not demonstrate a reduced likelihood of reoffense.