New York Supreme Court Appellate Division, First Department
March 12, 2013
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
FERNANDO SALAS, DEFENDANT-APPELLANT.
People v Salas
Decided on March 12, 2013
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.
Sweeny, J.P., Moskowitz, Abdus-Salaam, Roman, 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 NY3d 445, 447 ) 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 AD3d 358, 358 [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 NY3d 60, 70 , cert denied 558 US , 130 S Ct 552 ; People v Mingo, 12 NY3d 563, 568 n 2 ). 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 AD3d 448 [1st Dept 2011]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 12, 2013
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