PEOPLE v. CABAN (2009)

Appeal by the defendant from an order of the Supreme Court, Queens County (Grosso, J.), dated January 30, 2007, which, after a hearing to redetermine the defendant's sex offender risk level pursuant to the stipulation of settlement in Doe v. Pataki, 3 F.Supp.2d 456, designated him a level two sex offender pursuant to Correction Law article 6-C.

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

 At the hearing held pursuant to the Sex Offender Registration Act (hereinafter SORA) to redetermine the defendant's risk level (see Correction Law § 168-a et seq.), the Supreme Court properly assessed the defendant 20 points under risk factor 5 because the victim was between 11 and 16 years old (Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary [2006] ) and 20 additional points under risk factor 6 because the victim was asleep at the beginning of the incident and therefore was “physically helpless” (id. at 11;  see Penal Law § 130.00[7];  People v. Bush, 57 A.D.3d 1119, 868 N.Y.S.2d 419, lv. denied 12 N.Y.3d 756, 876 N.Y.S.2d 708, 904 N.E.2d 845;  People v. Ramirez, 53 A.D.3d 990, 990-991, 863 N.Y.S.2d 114;  People v. Davis, 51 A.D.3d 442, 857 N.Y.S.2d 542;  People v. DeCicco, 38 A.D.3d 937, 830 N.Y.S.2d 837;  People v. Vaughn, 26 A.D.3d 776, 776-777, 809 N.Y.S.2d 718;  People v. Greene, 13 A.D.3d 991, 992, 787 N.Y.S.2d 466;  People v. Sensourichanh, 290 A.D.2d 886, 737 N.Y.S.2d 670).   Inasmuch as the victim's physical helplessness was not the result of, or in any way connected with, her age, assessing points in both categories did not constitute impermissible double counting (see People v. Davis, 51 A.D.3d at 442, 857 N.Y.S.2d 542;  cf. Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary [2006], at 11).

The defendant's remaining contention is unpreserved for appellate review and, in any event, is without merit.