PEOPLE v. BAILEY (2024)

DECISION & ORDER

Appeal by the defendant from an order of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), dated November 26, 2019, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6–C.

ORDERED that the order is affirmed, without costs or disbursements.

In establishing an offender's appropriate risk level under the Sex Offender Registration Act (Correction Law art 6–C), the People “bear the burden of proving the facts supporting the determinations sought by clear and convincing evidence” (id. § 168–n[3]).  Contrary to the defendant's contention, the Supreme Court properly assessed him 20 points under risk factor 6 of the risk assessment instrument, as the People established by clear and convincing evidence that the victim was asleep at the beginning of the incident and, therefore, was physically helpless (see Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 11 [2006];  Penal Law § 130.00[7];  People v. Morrison, 156 A.D.3d 831, 67 N.Y.S.3d 246;  People v. Smith, 144 A.D.3d 652, 653, 40 N.Y.S.3d 473;  People v. Richardson, 101 A.D.3d 837, 838, 957 N.Y.S.2d 158;  People v. Duff, 96 A.D.3d 1031, 946 N.Y.S.2d 891;  People v. Howell, 82 A.D.3d 857, 918 N.Y.S.2d 364).

Accordingly, the Supreme Court properly designated the defendant a level two sex offender.

LASALLE, P.J., FORD, VOUTSINAS and GOLIA, JJ., concur.