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PEOPLE v. WINBUSH

13731, 6000/88

123 A.D.3d 490 (2014)

997 N.Y.S.2d 71

2014 NY Slip Op 08582

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WILLIE WINBUSH, Appellant.

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

Decided December 9, 2014.

The court properly assessed 20 points under the risk factor for the victim's physical helplessness. The record establishes that the victim was unconscious, and hence physically unable to communicate her lack of consent, at the time police officers observed defendant sexually assaulting her (see Penal Law § 130.00 [7]). Contrary to defendant's argument, in order to assess points under this risk factor, it was not necessary...

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