PEOPLE v. RIVERA (2023)

Order, Supreme Court, Bronx County (Raymond L. Bruce, J.), entered on or about June 28, 2019, which adjudicated defendant a level three sexually violent offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously affirmed, without costs.

The override for infliction of serious physical injury was supported by clear and convincing evidence.  The term “serious physical injury” has its Penal Law meaning, which includes “physical injury which creates a substantial risk of death” (Sex Offender Registration Act:  Risk Assessment Guidelines and Commentary at 19 [2006];  see also Penal Law § 10.00[10]).  The evidence established that defendant, after raping the victim and with the intent to kill, shot the victim three times with a gun at close range, striking her in the face, lower back, and buttock.  The victim, in attempting to escape, was unable to stand and had to drag her body along the ground due to extensive blood loss until she received aid.  After being taken to the hospital by ambulance, the victim underwent surgery and was admitted for three days.  This evidence was sufficient to warrant the finding that the gunshot wounds created a substantial risk of death (see People v. Guzman, 212 A.D.3d 580, 182 N.Y.S.3d 92 [1st Dept. 2023], lv denied 39 N.Y.3d 1141, 188 N.Y.S.3d 453, 209 N.E.3d 1279 [2023];  People v. Arroyo, 166 A.D.3d 564, 89 N.Y.S.3d 57 [1st Dept. 2018], lv denied 32 N.Y.3d 1201, 99 N.Y.S.3d 215, 122 N.E.3d 1128 [2019]).

The court providently exercised its discretion in declining to grant a downward departure (see People v. Gillotti, 23 N.Y.3d 841, 861, 994 N.Y.S.2d 1, 18 N.E.3d 701 [2014]).  The mitigating factors cited by defendant were largely taken into account by the risk assessment instrument.  To the extent that they were not, they were outweighed by the heinousness of the underlying crime.