People v. Madlin

In People v. Madlin, 302 A.D.2d 751 (3rd Dept. 2003) the courtrelied upon the victim's statements to police as contained in the Pre-Sentence Report and not just the final charge. These statements indicated that the defendant engaged in multiple acts of sexual misconduct with the victim, but only attempted to engage in deviate sexual intercourse. The Third Department held that the guidelines were misapplied by adding points for engaging in deviate sexual intercourse since the "deviate sexual intercourse contemplates commission of specific sexual acts rather than attempted commission of those acts as occurred here." (Madlin, supra at 751.)