Opinion
2013-03-12
The PEOPLE of the State of New York, Respondent, v. Fernando SALAS, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Amy Donner of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Amy Donner of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheila L. Bautista of counsel), for respondent.
SWEENY, J.P., MOSKOWITZ, ABDUS–SALAAM, ROMÁN, FEINMAN, JJ.
Order, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), entered on or about May 5, 2011, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art. 6–C), unanimously affirmed, without costs.
The court properly raised defendant's “Use of Violence” score based on medical evidence and grand jury testimony establishing that the victim sustained the requisite physical injury. The evidence supports the inference that defendant caused “more than slight or trivial pain” ( People v. Chiddick, 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007] ) to the victim by inflicting a complete tear to her hymen, along with bruises, soreness and red marks to her arms, wrists and hands ( see People v. Fisher, 22 A.D.3d 358, 358, 803 N.Y.S.2d 45 [1st Dept. 2005] ). Among other things, the victim reported significant pain when she was examined at the hospital, notwithstanding that her pain had lessened by the time she was discharged.
The court properly exercised its discretion in denying defendant's application for a downward departure ( see People v. Cintron, 12 N.Y.3d 60, 70, 875 N.Y.S.2d 828, 903 N.E.2d 1149 [2009],cert. denied558 U.S. ––––, 130 S.Ct. 552, 175 L.Ed.2d 382 [2009];People v. Mingo, 12 N.Y.3d 563, 568 n. 2, 883 N.Y.S.2d 154, 910 N.E.2d 983 [2009] ). The mitigating factors asserted by defendant were adequately taken into account by the risk assessment instrument, and were outweighed by the seriousness of the underlying sex crime ( see e.g. People v. Melendez, 83 A.D.3d 448, 919 N.Y.S.2d 850 [1st Dept. 2011] ).