| People v Duff |
| 2012 NY Slip Op 05156 [96 AD3d 1031] |
| June 27, 2012 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v William Duff, Appellant. |
—[*1] Thomas J. Spota, District Attorney, Riverhead, N.Y. (Anne E. Oh of counsel), forrespondent.
Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), datedJanuary 25, 2010, which, after a hearing, designated him a level three sexually violent offenderpursuant to Correction Law article 6-C.
Ordered that the order is affirmed, without costs or disbursements.
In this proceeding to determine the defendant's risk level pursuant to the Sex OffenderRegistration Act (see Correction Law § 168-a et seq.), the County Courtproperly relied upon the complainant's sworn statement to the police and grand jury testimony(see Correction Law § 168-n [3]; People v Pettigrew, 14 NY3d 406, 408-409 [2010]; People v Mingo, 12 NY3d 563,574 [2009]; People v Carleo, 82AD3d 1067, 1069 [2011]; People vNeal, 73 AD3d 1145 [2010]; People v Bolton, 50 AD3d 990 [2008]). Moreover, the CountyCourt properly assessed the defendant 20 points under risk factor 6, as the complainant's swornstatement to the police and grand jury testimony established that the complainant was asleep atthe beginning of the incident and was thus "physically helpless" (see Sex OffenderRegistration Act: Risk Assessment Guidelines and Commentary, at 11 [2006]; Penal Law§ 130.00 [7]; People vEdwards, 93 AD3d 1210, 1211 [2012]; People v Howell, 82 AD3d 857 [2011]; People v Caban, 61 AD3d 834,835 [2009]; People v Vaughn, 26AD3d 776, 777 [2006]; People v Irving, 151 AD2d 605, 605-606 [1989]). Dillon,J.P., Balkin, Belen and Chambers, JJ., concur.