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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. John CULLEN, Defendant-Appellant.

Decided: March 27, 2009

PRESENT:  SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND PINE, JJ. Charles A. Marangola, Moravia, for Defendant-Appellant. Jon E. Budelmann, District Attorney, Auburn (Charles M. Thomas of Counsel), for Respondent.

 We previously held this case, reserved decision and remitted the matter to County Court for compliance with Correction Law § 168-n(3), based on the court's failure “to set forth the findings of fact and conclusions of law upon which it based its determination” (People v. Cullen, 53 A.D.3d 1105, 1106, 862 N.Y.S.2d 684).   We conclude that, upon remittal, the court properly determined that defendant is a level three risk pursuant to the Sex Offender Registration Act (§ 168 et seq.), based on the requisite findings of fact and conclusions of law.   Defendant contends that the court erred in refusing to grant his request for a downward departure from his presumptive risk level. We reject that contention inasmuch as “ ‘defendant failed to present clear and convincing evidence of special circumstances justifying a downward departure’ ” (People v. Ratcliff, 53 A.D.3d 1110, 862 N.Y.S.2d 686, lv. denied 11 N.Y.3d 708, 868 N.Y.S.2d 600, 897 N.E.2d 1084).   We reject the further contention of defendant that the court erred in assessing points against him based on the first victim's physical helplessness.   That victim was asleep at the time of the sexual assault, and the “definition of physically helpless is broad enough to include a sleeping victim” (People v. Harris, 46 A.D.3d 1445, 1446, 848 N.Y.S.2d 792, lv. denied 10 N.Y.3d 707, 858 N.Y.S.2d 654, 888 N.E.2d 396;  see Penal Law § 130.00[7] ).   Although we agree with defendant that the People failed to present clear and convincing evidence that his conduct while confined or under supervision was unsatisfactory (see Correction Law § 168-n[3] ), we nevertheless conclude that the erroneous assessment of 10 points under that risk factor does not alter defendant's presumptive classification as a level three risk.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.