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PEOPLE v. RAY

5519, 3596/01.

86 A.D.3d 435 (2011)

926 N.Y.S.2d 290

2011 NY Slip Op 5870

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. HAKIM RAY, Appellant.

Appellate Division of the Supreme Court of New York, First Department.

Decided July 7, 2011.

Defendant was convicted of first-degree rape. In that case, the record discloses that the victim awoke and attempted to fend defendant off before he initiated sexual contact. Therefore, the victim was not "physically helpless" at the time of the rape (see People v Cecunjanin, 16 N.Y.3d 488 [2011]), and defendant should not have been assessed 20 points under that risk factor. However, we reject defendant's remaining challenge to his...

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