People v. Orlopp

Summary

The New York Supreme Court, Appellate Division, Fourth Department affirmed an order classifying Bradley B. Orlopp as a level three sex offender under the Sex Offender Registration Act. The court held that assessing points under risk factors 5 and 6 did not constitute impermissible double counting because the victim's age and physical helplessness were distinct considerations. The court also rejected the downward-departure and ineffective-assistance claims.

Holdings

1. Assessing points for the victim's age under risk factor 5 and for her physical helplessness because she was asleep under risk factor 6 did not constitute impermissible double counting where the victim's physical helplessness was independent of and not connected with her age.
2. Defendant's downward-departure claim was unpreserved because counsel made only legal arguments and did not ask the court to exercise its discretion to depart from the Board's recommendation. In any event, defendant failed to prove by a preponderance of the evidence a mitigating factor not adequately accounted for by the guidelines.
3. Defendant received effective assistance of counsel.

Questions Presented

1. Whether assessing points under both SORA risk factor 5, concerning the victim's age, and risk factor 6, concerning the victim's physical helplessness, constituted impermissible double counting.
2. Whether defendant preserved and established entitlement to a downward departure from the presumptive SORA risk level.
3. Whether defendant was denied effective assistance of counsel during the SORA risk-level classification proceeding.

Disposition

affirmed