
    The People of the State of New York, Respondent, v Donovan Ferguson, Appellant.
    [21 NYS3d 891]
   Order, Supreme Court, Bronx County (Megan Tallmer, J.), entered on or about December 13, 2012, which adjudicated defendant a level two sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6-C), unanimously affirmed, without costs.

Clear and convincing evidence supported the assessment of points for the victim’s physical helplessness and for defendant’s infliction of physical injury. The grand jury minutes established that the victim was asleep when approached by defendant, who thereupon used forcible compulsion (see People v Howell, 82 AD3d 857 [2d Dept 2011], lv denied 16 NY3d 713 [2011]). Defendant did not challenge the court’s summarization of the grand jury testimony, or raise any issue regarding disclosure of the minutes (see People v Baxin, 26 NY3d 6 [2015]). Furthermore, defendant conceded that the victim sustained physical injury.

The court properly exercised its discretion when it declined to grant a downward departure (see People v Gillotti, 23 NY3d 841 [2014]). There were no mitigating factors that were not adequately taken into account by the guidelines, and the record does not establish any basis for a downward departure. Concur — Tom, J.P., Mazzarelli, Richter and Gische, JJ.  