| People v Ray |
| 2011 NY Slip Op 05870 [86 AD3d 435] |
| July 7, 2011 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Hakim Ray, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Marc A. Sherman of counsel), forrespondent.
Order, Supreme Court, Bronx County (John W. Carter, J.), entered on or about December 4,2009, which adjudicated defendant a level three sex offender under the Sex OffenderRegistration Act (Correction Law art 6-C), unanimously affirmed, without costs.
Defendant was convicted of first-degree rape. In that case, the record discloses that the victimawoke and attempted to fend defendant off before he initiated sexual contact. Therefore, thevictim was not "physically helpless" at the time of the rape (see People v Cecunjanin, 16 NY3d 488 [2011]), and defendantshould not have been assessed 20 points under that risk factor. However, we reject defendant'sremaining challenge to his point score. Accordingly, defendant's correct score was 100, which isslightly below the threshold for a level three offender.
Regardless of whether defendant's correct point score would make him a presumptive risklevel two or three offender, the court properly found clear and convincing evidence ofaggravating factors to support its discretionary upward departure to level three. The riskassessment instrument did not adequately account for the extreme brutality and aggravatedcircumstances of the crime (see e.g. People v Miller, 48 AD3d 774 [2008], lv denied 10 NY3d711 [2008]; People v Sanford, 47AD3d 454 [2008], lv denied 10 NY3d 707 [2008]). Concur—Mazzarelli, J.P.,Catterson, DeGrasse, Abdus-Salaam and RomÁn, JJ.