APPEAL by the defendant from an order of the Supreme Court (Leonard P. Rienzi, J.), dated September 11, 2007, and entered in Richmond County, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.
The opinion of the court was delivered by: Rivera, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, JOSEPH COVELLO and JOHN M. LEVENTHAL, JJ.
On the instant appeal, we consider whether the injuries inflicted by the defendant on his ex-girlfriend, the mother of his then four-year-old son, constitute "physical injury" for purposes of the Sex Offender Registration Act (hereinafter SORA). For the reasons that follow, we conclude that the defendant did, in fact, inflict "physical injury" as that term is defined under the SORA Risk Assessment Guidelines and Commentary. Accordingly, the Supreme Court properly assessed 15 points under Risk Factor 1 for "Use of Violence - Inflicted physical injury" and correctly designated the defendant a level two sex offender pursuant to Correction Law article 6-C.
I. Factual and Procedural Background
On Saturday, October 29, 1994, the defendant raped his ex-girlfriend, the mother of his then four year-old son (hereinafter the victim). On that date, the defendant and the victim were no longer together. In fact, each of them was married to another person. The victim did not report this incident to the police.
One week later, on November 5, 1994, the defendant again appeared at the victim's residence in Sacramento, California. The victim had just exited the bathroom, wearing only a slip. According to the victim, she "wasn't afraid that he was going to do it again because when he called to apologize he stated that he promised that he would never hurt me again" and that "[a]ll he wanted to do [wa]s see his son and give [the victim] money." Inside of the victim's apartment, the defendant stated that he wanted to "get back together" with her.
The defendant followed the victim to the living room and began to act in a "real aggressive" manner. He "grabbed" her and gave her "a big bear hug." When the victim broke free, she and the defendant began fighting. The victim managed to run into the kitchen, grab a "very large butcher knife," and come toward him. The defendant then grabbed the victim's wrist and twisted it, forcing her to her knees. The defendant took the knife away from the victim and threw it by the front door.
At this point, the victim continued "fighting and wrestling" with the defendant and started throwing things at him, including the kitchen chairs. The defendant grabbed the victim and threw her down on the floor. During the struggle, the victim's slip "pulled up" and the defendant positioned the victim on her stomach. He then laid on top of her and inserted his penis inside her vagina.
During the "whole time," the victim yelled "Chris get off of me," "somebody help me," "no," and "stop." The victim "broke away" from the defendant and ran. As she reached her son's room, the defendant grabbed her again. The two "wrestled around" on the floor. The victim threw toys at the defendant, grabbing the vacuum cleaner and "anything" within her reach "to hit him."
The defendant "pinned" the victim down and began "kissing or licking" her breasts. He then inserted his penis inside her vagina. She continued to fight with him and again managed to break free.
Again, the defendant threw her down on the floor and "tried to put his penis back inside [her] vagina." However, the victim pressed her "legs together." As the victim continued to scream, the defendant slapped her twice, once on the mouth and once on her left cheek. At one point, he placed his hand over her mouth and directed her to "be quiet."
The defendant then "dragged" the victim "by [her] feet" into the master bedroom, and threw her onto the bed "face down into the pillow because [she] was screaming so much." He rolled her over and again inserted his penis inside of her vagina. "[A]ll of a sudden," the defendant "just got off" at which time the victim dialed 911, the ...