| People v Cullen |
| 2009 NY Slip Op 02416 [60 AD3d 1466] |
| March 27, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v John Cullen,Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Charles M. Thomas of counsel), forrespondent.
Appeal from an order of the Cayuga County Court (Thomas G. Leone, J.), entered August10, 2007. The appeal was held by this Court by order entered July 3, 2008, decision was reservedand the matter was remitted to Cayuga County Court for further proceedings (53 AD3d 1105[2008]). The proceedings were held and completed.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: We previously held this case, reserved decision and remitted the matter toCounty Court for compliance with Correction Law § 168-n (3), based on the court's failure"to set forth the findings of fact and conclusions of law upon which it based its determination"(People v Cullen, 53 AD3d 1105, 1106 [2008]). We conclude that, upon remittal, thecourt properly determined that defendant is a level three risk pursuant to the Sex OffenderRegistration Act (Correction Law § 168 et seq.), based on the requisite findings offact and conclusions of law. Defendant contends that the court erred in refusing to grant hisrequest for a downward departure from his presumptive risk level. We reject that contentioninasmuch as " 'defendant failed to present clear and convincing evidence of specialcircumstances justifying a downward departure' " (People v Ratcliff, 53 AD3d 1110[2008], lv denied 11 NY3d 708 [2008]). We reject the further contention of defendantthat the court erred in assessing points against him based on the first victim's physicalhelplessness. That victim was asleep at the time of the sexual assault, and the "definition ofphysically helpless is broad enough to include a sleeping victim" (People v Harris, 46AD3d 1445, 1446 [2007], lv denied 10 NY3d 707 [2008]; see Penal Law §130.00 [7]). Although we agree with defendant that the People failed to present clear andconvincing evidence that his conduct while confined or under supervision was unsatisfactory(see Correction Law § 168-n [3]), we nevertheless conclude that the erroneousassessment of 10 points under that risk factor does not alter defendant's presumptiveclassification as a level three risk. Present—Scudder, P.J., Centra, Fahey, Peradotto andPine, JJ.