PEOPLE v. CARABALLO (2018)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about February 24, 2017, 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, including reliable hearsay (see People v. Mingo, 12 N.Y.3d 563, 571, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ), demonstrated that the victim was “physically helpless” at the time of the underlying offense, justifying the assessment of 20 points under risk factor six (see People v. Pettigrew, 14 N.Y.3d 406, 409, 901 N.Y.S.2d 569, 927 N.E.2d 1053 [2010] ).  Under the circumstances, the fact that defendant was ultimately not charged under this theory did not show that the victim's statement had been discredited (see People v. Epstein, 89 A.D.3d 570, 571, 933 N.Y.S.2d 239 [1st Dept. 2011] ).

In any event, regardless of whether defendant's correct point score is 95 or 75 points, he remains a level two offender, and we find no basis for a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014] ), particularly in light of the egregiousness of defendant's conduct and his significant criminal history.