PEOPLE v. DAVIS (2008)

Order, Supreme Court, New York County (Edwin Torres, J.), entered on or about January 9, 2007, 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 circumstances of the case warranted separate assessments of points under the factor based on the age of the victim, who was 10 years old at the time of the incident, and under the factor based on the physical helplessness of the victim, who was asleep during the sexual assault (see People v. Vaughn, 26 A.D.3d 776, 809 N.Y.S.2d 718 [2006];  People v. Frisbee, 3 Misc.3d 507, 510, 773 N.Y.S.2d 534 [2004] ).   The physical helplessness had nothing to do with her age, and there was no improper double counting.

Even if we were to accept defendant's argument concerning the assessment of points for the drug or alcohol abuse factor, he would remain a level two sex offender.   In any event, we reject that argument (see People v. Wilkens, 33 A.D.3d 399, 822 N.Y.S.2d 79 [2006], lv. denied 8 N.Y.3d 801, 828 N.Y.S.2d 292, 861 N.E.2d 108 [2007] ).

To the extent defendant is also arguing in favor of a downward departure, he has not established the requisite special circumstances.