Criteria for (Upward) Departure from the Risk Level Assessed by the Board of Sex Offenders Explained

The First Department determined the SORA court properly departed from the recommendation by the Board of Sex Offenders (the Board) that defendant be assessed a level one sex offender.  The defendant had communicated in an Internet chat room with a police officer posing as a 13-year-old girl. Upward departure (to level two) was deemed warranted because, although there was no actual victim, the defendant’s behavior indicated he posed a risk to young girls and might re-offend. The court explained when departure from the Board’s recommendation is warranted:

The court concluded that the Board’s allocation to defendant of risk level one was inadequate and determined him to be a risk level two. The court stated, in relevant part:

“I don’t think this level would be appropriate for somebody who might re-engage in this conduct because the next person that he’s in contact with could very well be a real child and that person would be victimized, and I don’t think that this qualifies under the lowest level. This is not like one single, you know, inadvertent contact with somebody. This is a relationship that he attempted to develop, and as if over the period of days he got more and more explicit, counsel, indicated to her what he wanted to do, all the while thinking she’s a 13 year-old girl. I don’t believe that this risk score or the Board’s recommendation accurately reflects even the risk of his re-offending, counsel, or the harm that would be caused if he did re-offend, which are the two factors that the court is supposed to weigh in assessing his risk.” …

Although the Board’s assessment of a risk level is presumed to be correct, the reviewing court is to consider it as only a recommendation from which it, as an exercise of its discretion, can depart if there is clear and convincing evidence that a departure is warranted (…Correction Law 168-n[3]). The court’s analysis is not limited to tallying up points it believes the Board did not assess; rather, the court can adjust the risk level upwards if it determines that there are “aggravating factors not adequately accounted for in the [RAI]” … . This rule derives from the Board’s “Risk Assessment Guidelines and Commentary,” (the Guidelines), which note that “an objective instrument, no matter how well designed, will not fully capture the nuances of every case. Not to allow for departures would, therefore, deprive the Board or a court of the ability to exercise sound judgment and to apply its expertise to the offender” … . Conversely, as noted, the Board’s determinations are presumptive, and not to be routinely overturned … .  People v Macchia, 2015 NY Slip Op 01883, 1st Dept 3-10-15