People v. Wilkes

Appeal by the defendant from an order of the County Court, Westchester County (R. Bellantoni, J.), dated November 3, 2006, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C. Ordered that the order is affirmed, without costs or disbursements. The defendant was appropriately assessed points based on the victim’s physical helplessness (see People v Davenport, 38 AD3d 634 [2007]), and for having inflicted a physical injury on her (see People v Bogan, 70 NY2d 860; People v Cannon, 300 AD2d 407 [2002]). The County Court’s determination to designate the defendant a level three sex offender was supported by clear and convincing evidence (see People v Smith, 46 AD3d 791 [2007]; People v Morris, 33 AD3d 778 [2006]). The issue of whether an automatic override is applicable in this case has been rendered academic given the determination that the defendant is, by score, a level three sex offender. Spolzino, J.R, Santucci, Angiolillo and Garni, JJ., concur.