| People v Howell |
| 2011 NY Slip Op 01816 [82 AD3d 857] |
| March 8, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Waine Howell, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Thomas Constant of counsel), forrespondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), datedFebruary 5, 2010, which, after a hearing, designated him as a level two sex offender pursuant toCorrection Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
After a hearing pursuant to the Sex Offender Registration Act to determine the defendant'srisk level (see Correction Law § 168-a et seq.), the County Court properlyassessed the defendant 20 points under risk factor 6 based on the complainant's grand jurytestimony that she was sleeping at the beginning of the incident and was thus "physicallyhelpless" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 11[2006]; see Penal Law § 130.00 [7]; People v Caban, 61 AD3d 834, 835 [2009]). Moreover, contrary tothe defendant's contention, the imposition of 20 points under risk factor 6 based on thecomplainant's physical helplessness and the imposition of 10 points under risk factor 1 based onthe defendant's use of forcible compulsion during the incident did not constitute double-counting.The complainant stated that the defendant continued to force himself upon her after she hadawakened, and the two factors represent "cumulative, not duplicative, predictors of re-offense"(People v Pietarniello, 53 AD3d475, 476 [2008]; see Sex Offender Registration Act: Risk Assessment Guidelinesand Commentary, at 7, 11 [2006]).
We agree with the defendant that it was improper for the County Court to assess 15 pointsunder risk factor 11 for a history of drug or alcohol abuse. The defendant was provided with nonotice prior to the hearing that the County Court was considering assessing points under thisfactor, and he had no meaningful opportunity to contest the imposition of points under this factor(see People v Gardner, 59 AD3d604, 605 [2009]; People vFerguson, 53 AD3d 571, 572 [2008]). Nevertheless, deducting these 15 points from thetotal points assessed against the defendant does not alter his presumptive risk level (see People v Mabee, 69 AD3d 820[2010]; People v Mercado, 55AD3d 583 [2008]).
Accordingly, the County Court properly designated the defendant a level two sex offender.Covello, J.P., Chambers, Lott and Cohen, JJ., concur.