| People v Caraballo |
| 2018 NY Slip Op 06821 |
| Decided on October 11, 2018 |
| 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 October 11, 2018
Friedman, J.P., Gische, Kapnick, Kahn, Oing, JJ.
7320 99072/16
v
Roberto Caraballo, Defendant-Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Molly Schindler of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Robert McIver of counsel), for respondent.
Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about February 24, 2017, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.
Clear and convincing evidence, including reliable hearsay (see People v Mingo, 12 NY3d 563, 571 [2009]), demonstrated that the victim was "physically helpless" at the time of the underlying offense, justifying the assessment of 20 points under risk factor six (see People v Pettigrew, 14 NY3d 406, 409 [2010]). Under the circumstances, the fact that defendant was ultimately not charged under this theory did not show that the victim's statement had been discredited (see People v Epstein, 89 AD3d 570, 571 [1st Dept 2011]).
In any event, regardless of whether defendant's correct point score is 95 or 75 points, he remains a level two offender, and we find no basis for a downward departure (see People v Gillotti, 23 NY3d 841 [2014]), particularly in light of the egregiousness of defendant's conduct and his significant criminal history.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 11, 2018
CLERK