PEOPLE v. BADILLO (2023)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about October 8, 2014, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

Clear and convincing evidence supported the court's assessment of 20 points under the risk factor relating to the victim's physical helplessness when defendant sexually assaulted her (Correction Law § 168–n[3]).  The victim testified before the grand jury that she was asleep when she “felt something,” at which time she woke up to find her leggings removed and defendant on top of her, rubbing his penis against her genitals.  The record therefore supports the court's finding that defendant sexually assaulted the victim while she was physically helpless, because it is reasonable to infer from the grand jury testimony that the victim was asleep when the assault began (see People v. Rivera, 156 A.D.3d 529, 529, 65 N.Y.S.3d 449 [1st Dept. 2017]);  People v. Acevedo, 124 A.D.3d 500, 500, 998 N.Y.S.2d 621 [1st Dept. 2015].

The circumstances of the case justified separate assessments under the factor based on the age of the victim, who was nine years old at the time of the assault, and the factor based on the victim's physical helplessness (see People v. Davis, 51 A.D.3d 442, 442, 857 N.Y.S.2d 542 [1st Dept. 2008], lv denied 11 N.Y.3d 703, 864 N.Y.S.2d 807, 894 N.E.2d 1198 [2008]).  Although the court briefly alluded to the victim's young age when addressing the 20–point assessment, the point assessment did not constitute improper double counting of risk factors, because the victim's physical helplessness had nothing to do with her age and the grand jury testimony amply supported the court's decision to make a 20–point assessment (id.).  Furthermore, that the charges against defendant had been predicated on the victim's age, rather than on her physical helplessness at the time of the offense, does not undermine the court's decision to assess points for physical helplessness, because the court is not bound by any exercise of prosecutorial discretion in determining an offender's risk level (see People v. Epstein, 89 A.D.3d 570, 571, 933 N.Y.S.2d 239 [1st Dept. 2011]).