| People v Davis |
| 2008 NY Slip Op 04193 [51 AD3d 442] |
| May 6, 2008 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Marcus Davis, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Nicole Beder of counsel), forrespondent.
Order, Supreme Court, New York County (Edwin Torres, J.), entered on or about January 9,2007, which adjudicated defendant a level two sex offender pursuant to the Sex OffenderRegistration Act (Correction Law art 6-C) unanimously affirmed, without costs.
The circumstances of the case warranted separate assessments of points under the factorbased on the age of the victim, who was 10 years old at the time of the incident, and under thefactor based on the physical helplessness of the victim, who was asleep during the sexual assault(see People v Vaughn, 26 AD3d776 [2006]; People v Frisbee, 3Misc 3d 507, 510 [2004]). The physical helplessness had nothing to do with her age, andthere was no improper double counting.
Even if we were to accept defendant's argument concerning the assessment of points for thedrug or alcohol abuse factor, he would remain a level two sex offender. In any event, we rejectthat argument (see People vWilkens, 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 notestablished the requisite special circumstances. Concur—Lippman, P.J., Saxe, Buckley andAcosta, JJ.