| People v Acevedo |
| 2015 NY Slip Op 00606 [124 AD3d 500] |
| January 22, 2015 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Jeffery Acevedo, Appellant. |
Steven Banks, The Legal Aid Society, New York (Natalie Rea of counsel), forappellant.
Cyrus R. Vance, Jr., District Attorney, New York (Hope Korenstein of counsel), forrespondent.
Order, Supreme Court, New York County (Michael J. Obus, J.), entered on or aboutJune 16, 2011, which adjudicated defendant a level two sex offender pursuant to the SexOffender Registration Act (Correction Law art 6-C), unanimously affirmed, withoutcosts.
The court properly assessed 20 points under the risk factor for the victim's physicalhelplessness because contrary to defendant's contention, the victim unambiguouslytestified before the grand jury that she was asleep at the time of defendant's initialtouching and she only woke up after he started fondling her breast (see People v Sene, 66 AD3d427, 428 [1st Dept 2009], lv denied 13 NY3d 941 [2010]; see alsoPeople v Teicher, 52 NY2d 638, 646, 649 [1981]).
The court properly assessed 15 points under the risk factor for drug abuse, based ondefendant's extensive involvement with marijuana. Even without those points, defendantwould remain a level two offender, given the court's uncontested assessment of 20additional points not assessed under the risk assessment instrument.
The court properly exercised its discretion when it declined to grant a downwarddeparture (see People vGillotti, 23 NY3d 841 [2014]). Although defendant requested a departure, hedid so on different grounds from those asserted on appeal. Accordingly, his presentargument is unpreserved and we decline to review it in the interest of justice. As analternative holding, we reject it on the merits. Concur—Gonzalez, P.J., Renwick,DeGrasse, Manzanet-Daniels and Gische, JJ.