People v. Acevedo

Steven Banks, The Legal Aid Society, New York (Natalie Rea of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Hope Korenstein of counsel), for respondent.

Opinion

Order, Supreme Court, New York County (Michael J. Obus, J.), entered on or about June 16, 2011, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art. 6–C), unanimously affirmed, without costs.

The court properly assessed 20 points under the risk factor for the victim's physical helplessness because contrary to defendant's contention, the victim unambiguously testified before the grand jury that she was asleep at the time of defendant's initial touching and she only woke up after he started fondling her breast (see People v. Sene, 66 A.D.3d 427, 428, 887 N.Y.S.2d 8 [1st Dept.2009], lv. denied 13 N.Y.3d 941, 895 N.Y.S.2d 332, 922 N.E.2d 921 [2010] ; see also People v. Teicher, 52 N.Y.2d 638, 646, 649, 439 N.Y.S.2d 846, 422 N.E.2d 506 [1981] ).

The court properly assessed 15 points under the risk factor

for drug abuse, based on defendant's extensive involvement with marijuana. Even without those points, defendant would remain a level two offender, given the court's uncontested assessment of 20 additional points not assessed under the risk assessment instrument.

The court properly exercised its discretion when it declined to grant a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ). Although defendant requested a departure, he did so on different grounds from those asserted on appeal. Accordingly, his present argument is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits.

GONZALEZ, P.J., RENWICK, DeGRASSE, MANZANET–DANIELS, GISCHE, JJ., concur.