| People v Caban |
| 2009 NY Slip Op 03145 [61 AD3d 834] |
| April 21, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael Caban, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JeanetteLifschitz, and Jaclyn Belson of counsel), for respondent.
Appeal by the defendant from an order of the Supreme Court, Queens County (Grosso, J.),dated January 30, 2007, which, after a hearing to redetermine the defendant's sex offender risklevel pursuant to the stipulation of settlement in Doe v Pataki (3 F Supp 2d 456 [1998]),designated him a level two sex offender pursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
At the hearing held pursuant to the Sex Offender Registration Act (hereinafter SORA) toredetermine the defendant's risk level (see Correction Law § 168-a etseq.), the Supreme Court properly assessed the defendant 20 points under risk factor 5because the victim was between 11 and 16 years old (Sex Offender Registration Act: RiskAssessment Guidelines and Commentary [2006]) and 20 additional points under risk factor 6because the victim was asleep at the beginning of the incident and therefore was "physicallyhelpless" (id. at 11; see Penal Law § 130.00 [7]; People v Bush, 57 AD3d 1119[2008], lv denied 12 NY3d 756 [2009]; People v Ramirez, 53 AD3d 990, 990-991 [2008]; People v Davis, 51 AD3d 442[2008]; People v DeCicco, 38AD3d 937 [2007]; People vVaughn, 26 AD3d 776, 776-777 [2006]; People v Greene, 13 AD3d 991, 992 [2004]; People vSensourichanh, 290 AD2d 886 [2002]). Inasmuch as the victim's physical helplessness wasnot the result of, or in any way connected with, her age, assessing points in both categories didnot constitute impermissible double counting (see People v Davis, 51 AD3d at 442;cf. Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 11[2006]).[*2]
The defendant's remaining contention is unpreserved forappellate review and, in any event, is without merit. Fisher, J.P., Covello, Angiolillo andLeventhal, JJ., concur.