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No Basis in Law for “Automatic Override” Based Upon a Prior Sex Crime Conviction to Raise Sex Offender Status Above the Presumptive Level (SORA)

The Fourth Department reversed County Court’s determination that defendant, who was a presumptive level two sex offender, should be classified as a level three offender on the basis of a prior felony conviction of a sex crime.  The County Court described the authority for the upward departure as an “automatic override.”  The Fourth Department noted that an “automatic override” does not exist in this context and explained the criteria for an upward departure:

Based upon the total risk factor score of 85 points on the risk assessment instrument, defendant was presumptively classified as a level two risk. County Court determined that defendant was a level three risk based on the automatic override for a prior felony conviction of a sex crime. That was error. “[N]o basis in law exists for . . . an automatic override [to] increase[] defendant’s presumptive risk level two designation to risk level three” … . “A departure from the presumptive risk level is warranted where there exists an aggravating or mitigating factor of a kind or to a degree, not otherwise adequately taken into account by the guidelines” … . “ ‘There must exist clear and convincing evidence of the existence of special circumstance[s] to warrant an upward or downward departure’ ” … . People v Moore, 357, 4th Dept 3-28-14

 

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