Mitigating Factor (12 Years Since Release) Did Not Warrant Downward Departure in SORA Proceeding

he Second Department affirmed Supreme Court’s refusal to depart downward in a SORA proceeding, even though the fact that defendant had not been convicted of any sex offenses in the 12 years following his release from prison was a mitigating factor not taken into account by the risk assessment guidelines:

… [T]he defendant requested that the Supreme Court downwardly depart from his designation as a presumptive risk level two sex offender. In that respect, the defendant demonstrated, by a preponderance of the evidence, that he had not been convicted of any sex offenses in the 12 years following his release from prison, which is a mitigating factor not adequately taken into account by the SORA Risk Assessment Guidelines … . Nevertheless, in light of the grievous nature of the defendant’s offense and, thus, the danger he poses to society should he reoffend, the Supreme Court did not improvidently exercise its discretion in declining to downwardly depart from the presumptive risk level (…Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 2 [2006]). People v Rivera, 2013 NY Slip Op 05808, 2nd Dept 9-11-13