Upward Departure Proper In Light of Felony Conviction Not Considered in the Risk Assessment–Criteria for Upward Departure Explained In Some Detail

The Second Department determined County Court properly departed (upward) from the presumptive risk level based upon a felony conviction which pre-dated the sexual offenses considered in the risk assessment. The Second Department explained in some detail the criteria for an upward departure:

A court is permitted to depart from the presumptive risk level if “special circumstances” warrant departure (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006]). An upward departure is permitted only if the court concludes “that there exists an aggravating . . . factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines” (id. at 4…). In determining whether an upward departure is permissible and, if permissible, appropriate, a SORA court must engage in a multi-step inquiry. First, the court must determine whether the People have articulated, as a matter of law, a legitimate aggravating factor. Next, the court must determine whether the People have established, by clear and convincing evidence, the facts supporting the existence of that aggravating factor in the case before it. Upon the People’s satisfaction of these two requirements, an upward departure becomes discretionary. If, upon examining all of circumstances relevant to the offender’s risk of reoffense and danger to the community, the court concludes that the presumptive risk level would result in an underassessment of the risk or danger of reoffense, it may upwardly depart … . People v Williams, 2015 NY Slip Op 04465, 2nd Dept 5-27-15