Upward Departure from Level One to Three Not Warranted by the Evidence

The Second Department reversed the SORA court, finding that the People did not prove by clear and convincing evidence an upward departure from the presumptive risk level was warranted. The upward departure was erroneously based upon defendant’s psychiatric history, the place of the offense (a group home), a parole violation ten years before the sex offense and two older bench warrants. The court explained the “upward departure” analytical criteria and reduced the defendant’s risk level from three (the highest) to one (the lowest):

Once the presumptive risk level has been established at a risk level hearing, the court is permitted to depart from it if “special circumstances” warrant a departure … . An upward departure is permitted only if the court concludes, upon clear and convincing evidence, “that there exists an aggravating . . . factor of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] [G]uidelines” … . In determining whether an upward departure is permissible and, if permissible, appropriate, the court must engage in a three-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 presence of that 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 the 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 from that risk level … . If, however, the People do not satisfy the first two requirements, the court does not have the discretion to depart from the presumptive risk level … .

Here, the People did not meet their burden at the hearing. The People contended that the defendant’s psychiatric history and the fact that the defendant’s sex offense was committed in a group home constituted aggravating factors not adequately taken into account by the SORA Guidelines. The People failed to prove by clear and convincing evidence that the defendant’s psychiatric history was related to his risk of reoffense … . Additionally, they failed to establish, as a matter of law, that the particular setting of the defendant’s crime was an aggravating factor not taken into account under the Guidelines … . Finally, as the defendant contends, the court erred in sua sponte basing its decision to depart from the presumptive risk level on his parole violation occurring 10 years before he committed the sex offense and on two bench warrants, issued 14 and 18 years before he committed the sex offense. Those grounds for departure had never been raised, and the defendant was never afforded an opportunity to be heard on the issue of whether they were proper grounds for departure … . In any event, it was not established by clear and convincing evidence that those circumstances were relevant to the defendant’s risk of reoffense … . People v Manougian, 2015 NY Slip Op 07484, 2nd Dept 10-14-15