INFECTING A VICTIM WITH HIV CONSTITUTES “PHYSICAL INJURY” WITHIN THE MEANING OF RISK FACTOR 1 RE: THE SEX OFFENDER REGISTRATION ACT; HOWEVER THE FINDING THAT DEFENDANT IN FACT INFECTED THE VICTIM WITH HIV WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a defendant’s infecting a victim with HIV constitutes “physical injury” within the meaning of risk factor 1 re: the Sex Offender Registration Act (SORA). However the evidence that the victim was in fact infected with HIV by the defendant was not clear and convincing and the related 15 points should not have been assessed:

… [W]e conclude that infection with HIV constitutes a physical injury. …

A defendant’s statements as to his or her medical condition—unsupported by any records or evidence from a medical or health professional—have been rejected … , and there is no reason why the same rule should not apply to the People, who are held to a higher standard of proof. Points may be assessed at a SORA hearing based upon physical injury to the victim, based on “clear and convincing evidence in the record, including medical evaluations” … . However, here, no medical evaluations of the victim were in evidence, and the alleged impairment would not be apparent to a layperson. People v Alay, 2021 NY Slip Op 02551, Second Dept 4-28-21