| People v Ferguson |
| 2016 NY Slip Op 00048 |
| Decided on January 7, 2016 |
| Appellate Division, First 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 January 7, 2016
Tom, J.P., Mazzarelli, Richter, Gische, JJ.
16576 2228/12
v
Donovan Ferguson, Defendant-Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (Kerry Elgarten of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx (Jordan K. Hummel of counsel), for respondent.
Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about December 13, 2012, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
Clear and convincing evidence supported the assessment of points for the victim's physical helplessness and for defendant's infliction of physical injury. The grand jury minutes established that the victim was asleep when approached by defendant, who thereupon used forcible compulsion (see People v Howell, 82 AD3d 857 [2d Dept 2011], lv denied 16 NY3d 713 [2011]). Defendant did not challenge the court's summarization of the grand jury testimony, or raise any issue regarding disclosure of the minutes (see People v Baxin, 26 NY3d 6 [2015]). Furthermore, defendant conceded that the victim sustained physical injury.
The court properly exercised its discretion when it declined to grant a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). There were no mitigating factors that were not adequately taken into account by the guidelines, and the record does not establish any basis for a downward departure.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JANUARY 7, 2016
CLERK