People v. Strzelecki

People v Strzelecki (2015 NY Slip Op 01253)

People v Strzelecki

2015 NY Slip Op 01253

Decided on February 11, 2015

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 11, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
RUTH C. BALKIN
L. PRISCILLA HALL
SANDRA L. SGROI, JJ.

2014-04861

[*1]People of State of New York, respondent,

v

Michael Strzelecki, appellant.

Michael J. Ahern, West Sayville, N.Y., for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (Glenn Green of counsel), for respondent.

DECISION & ORDER

Appeal by the defendant from an order of the County Court, Suffolk County (Kahn, J.), dated March 27, 2014, which, after a hearing, designated him a level two sexually violent offender pursuant to Correction Law article 6-C.

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

Contrary to the defendant's contention, the County Court properly assessed 20 points under risk factor 4 for continuing course of sexual misconduct (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 10 [2006]). The County Court was not limited to considering only the crimes of which the defendant was convicted in making its determination (see Correction Law § 168-n[3]; People v Wilson, 117 AD3d 1557, 1558; People v Feeney, 58 AD3d 614, 615; People v LaRock, 45 AD3d 1121, 1122). The County Court also correctly assessed 30 points under risk factor 5 because the victim was less than 10 years old at the time of the subject sexual abuse (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 11 [2006]), and 20 points under risk factor 6 where, as here, the victim was asleep at the beginning of the sexual assault and, thus, physically helpless (see Penal Law § 130.00[7]; People v Richardson, 101 AD3d 837, 838; People v Duff, 96 AD3d 1031; People v Howell, 82 AD3d 857). Further, the County Court properly denied the defendant's request for a downward departure from the presumptive level two designation (see People v Gillotti, 23 NY3d 841, 845, 861; People v Wyatt, 89 AD3d 112, 131). Accordingly, the County Court properly designated the defendant a level two sexually violent offender.

RIVERA, J.P., BALKIN, HALL and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court