Opinion
695.2 KA 18-01273
10-09-2020
The PEOPLE of the State of New York, Respondent, v. Jarrel WHITEN, Defendant-Appellant.
M. BENJAMIN SUSMAN, AUBURN, FOR DEFENDANT-APPELLANT.
M. BENJAMIN SUSMAN, AUBURN, FOR DEFENDANT-APPELLANT.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level two risk under the Sex Offender Registration Act ( [SORA] Correction Law § 168 et seq. ) after his conviction of strangulation in the second degree ( Penal Law § 121.12 ) and rape in the third degree (§ 130.25 [1] ). We reject defendant's contention that County Court erred in assessing 15 points for inflicting physical injury on the victim. The SORA Risk Assessment Guidelines and Commentary (2006) (Guidelines) incorporates the Penal Law definition of physical injury in Penal Law § 10.00 (9), i.e., "impairment of physical condition or substantial pain" (see Guidelines at 8). "Of course ‘substantial pain’ cannot be defined precisely, but it can be said that it is more than slight or trivial pain. Pain need not, however, be severe or intense to be substantial" ( People v. Chiddick , 8 N.Y.3d 445, 447, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007] ). "Factors relevant to an assessment of substantial pain include the nature of the injury, viewed objectively, the victim's subjective description of the injury and his or her pain, whether the victim sought medical treatment, and the motive of the offender" ( People v. Haynes , 104 A.D.3d 1142, 1143, 960 N.Y.S.2d 572 [4th Dept. 2013], lv denied 22 N.Y.3d 1156, 984 N.Y.S.2d 640, 7 N.E.3d 1128 [2014] ).
Here, the People submitted the victim's affidavit wherein she averred that defendant, during a violent confrontation leading up to the rape, wrapped his legs around her rib cage and repeatedly squeezed until she lost consciousness. Although the record does not establish that the victim sought medical care, the victim averred that she heard one of her ribs "pop" as defendant restricted her ability to breathe and that she experienced great pain before becoming unconscious (see People v. Pohl , 160 A.D.3d 1453, 1453-1454, 76 N.Y.S.3d 337 [4th Dept. 2018], lv denied 32 N.Y.3d 940, 84 N.Y.S.3d 867, 109 N.E.3d 1167 [2018] ; People v. Kraatz , 147 A.D.3d 1556, 1556-1557, 47 N.Y.S.3d 817 [4th Dept. 2017] ). We thus conclude that the People established this risk factor by clear and convincing evidence (see People v. Cox , 181 A.D.3d 1184, 1186, 122 N.Y.S.3d 205 [4th Dept. 2020], lv denied 35 N.Y.3d 909, 2020 WL 3467489 [2020] ; see generally Correction Law § 168-n [3] ).
Contrary to defendant's further contention, defense counsel was not ineffective in failing to request a downward departure from defendant's presumptive risk level inasmuch as such a request had " ‘little or no chance of success’ " ( People v. Caban , 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005] ; see People v. Allport , 145 A.D.3d 1545, 1545-1546, 44 N.Y.S.3d 289 [4th Dept. 2016] ; People v. Greenfield , 126 A.D.3d 1488, 1489, 6 N.Y.S.3d 379 [4th Dept. 2015], lv denied 26 N.Y.3d 903, 2015 WL 5149744 [2015] ).