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Juvenile Delinquency Adjudication Should Not Have Been Considered in SORA Risk Assessment—Criteria for an Upward Departure Explained

The Second Department determined defendant’s juvenile delinquency adjudication should not have been considered in determining the defendant’s risk level. The court explained the proper procedure for considering an upward departure: … “[T]he County Court upwardly departed without following the required three analytical steps of determining, first, whether an aggravating factor exists as a matter of law, second, whether the People have adduced clear and convincing evidence of the facts in support of that aggravating factor, and third, whether, in the court’s discretion, the totality of the circumstances warrant the upward departure to avoid an under-assessment of the defendant’s dangerousness and risk of sexual recidivism …”. People v Ruland,  2015 NY Slip Op 04464, 2nd Dept 5-27-15

 

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PLAINTIFF, WHO WAS USING HIS OWN LADDER WHEN IT SLID CAUSING HIM TO FALL, WAS ENTITLED TO SUMMARY JUDGMENT ON HIS LABOR LAW 240 (1) CAUSE OF ACTION (SECOND DEPT).
REQUEST WAS PROPERLY DEEMED AN APPLICATION FOR AN AREA VARIANCE, NOT A USE VARIANCE, AND WAS PROPERLY GRANTED, CRITERIA EXPLAINED (SECOND DEPT).
DENIAL OF A PETITION TO MODIFY A SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT IS APPEALABLE AS OF RIGHT, PETITION PROPERLY DENIED (SECOND DEPT).
THE SNOW REMOVAL CONTRACTOR WAS NOT LIABLE FOR PASSIVE OMISSIONS, FAILURE TO SALT ICY AREA DOES NOT CONSTITUTE THE LAUNCHING OF AN INSTRUMENT OF HARM.
PLAINTIFF WAS NOT INJURED ON THE CONSTRUCTION SITE, LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED, LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION WERE VIABLE HOWEVER, USE OF ALIAS WAS NOT A FRAUD UPON THE COURT.
COUNTY COURT ABUSED ITS DISCRETION BY REFUSING TO ALLOW DEFENDANT TO SUBMIT A LATE NOTICE OF HIS INTENT TO PRESENT PSYCHIATRIC EVIDENCE, CONVICTION REVERSED (SECOND DEPT).
ATTORNEY’S FEES IN EXCESS OF WHAT COURT AWARDED NOT AVAILABLE, NOT ENTITLED TO PAYMENT FOR APPELLATE WORK WITHOUT A RETAINER AGREEMENT, LETTER OF ENGAGEMENT IN MATRIMONIAL MATTERS IS MANDATORY.
DEFENDANT PROPERTY OWNER DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF SNOW AND ICE ON THE SIDEWALK AND DID NOT DEMONSTRATE HE DID NOT CREATE THE HAZARD BY SNOW REMOVAL, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED.

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