You are here: / / LEVEL THREE ASSESSMENT FOR INFLICTION OF SERIOUS INJURY PROPER EVEN THOUGH ...
,

LEVEL THREE ASSESSMENT FOR INFLICTION OF SERIOUS INJURY PROPER EVEN THOUGH THERE WAS NO SEX OFFENSE COMMITTED DURING THE UNLAWFUL IMPRISONMENT OF A CHILD.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over an extensive dissent, determined County Court did not abuse its discretion when it applied a statutory override for infliction of serious injury, adjudicating defendant a level three sex offender, despite the fact defendant was not charged with a sex offense. By statute, a defendant convicted of the unlawful imprisonment of a child is deemed a sex offender, even when no sex offense was committed. Here the child was assaulted (tortured) and seriously injured over the course of a five-day ordeal, but no sex offense was involved. The points assessed under the Sex Offender Registration Act (SORA) criteria rose only to a level one. Because of the extreme violence, County Court applied the statutory override:

… [T]he application of the override for “infliction of serious physical injury,” “automatically result[s] in a presumptive risk assessment of level [three]” (Guidelines at 3). Therefore, properly framed, defendant’s argument is that the SORA court abused its discretion in declining to engage in a downward departure from the presumptive risk level three. We disagree.

Defendant’s sole argument to the SORA court was that the absence of a sexual component to his crime, in and of itself, warranted a level one adjudication. That factor, the existence of which was not in dispute, was considered [when] the Board assessed him 0 points for risk factor 2 — Sexual Contact with Victim. Defendant made no other argument of a mitigating factor to the SORA court in support of a downward departure. In the exercise of its discretion, the SORA court declined to depart from the presumptive risk level three. People v Howard, 2016 NY Slip Op 03415, CtApp 5-3-16

CRIMINAL LAW (SORA, LEVEL THREE ASSESSMENT FOR INFLICTION OF SERIOUS INJURY PROPER EVEN THOUGH THERE WAS NO SEX OFFENSE COMMITTED DURING THE UNLAWFUL IMPRISONMENT OF A CHILD)/SEX OFFENDER REGISTRATION ACT (LEVEL THREE ASSESSMENT FOR INFLICTION OF SERIOUS INJURY PROPER EVEN THOUGH THERE WAS NO SEX OFFENSE COMMITTED DURING THE UNLAWFUL IMPRISONMENT OF A CHILD)/SORA (LEVEL THREE ASSESSMENT FOR INFLICTION OF SERIOUS INJURY PROPER EVEN THOUGH THERE WAS NO SEX OFFENSE COMMITTED DURING THE UNLAWFUL IMPRISONMENT OF A CHILD)

You might also like
HAIL Act Regulating Taxi Cabs and Livery Vehicles in New York City Does Not Violate Home Rule Section of State Constitution
A CANINE SNIFF FOR DRUGS IS A SEARCH; ALTHOUGH THE APPELLATE DIVISION HAD ALSO RULED THE CANINE SNIFF WAS A SEARCH, THE APPELLATE DIVISION WENT ON TO APPLY THE “REASONABLE SUSPICION” STANDARD AND FOUND THAT STANDARD HAD BEEN MET BY THE FACTS; THE COURT OF APPEALS DETERMINED THE APPELLATE DIVISION DID NOT HAVE THE AUTHORITY TO RULE ADVERSELY TO THE DEFENDANT ON THE STANDARD BECAUSE COUNTY COURT HAD NOT RULED ON THAT ISSUE (COUNTY COURT HELD THE SNIFF WAS NOT A SEARCH); THE MATTER WAS SENT BACK TO COUNTY COURT FOR RULINGS ON THE STANDARD FOR A SNIFF SEARCH (CT APP). ​
TO SUFFICIENTLY ALLEGE THE APPLICABILITY OF THE FRAUD EXCEPTION TO THE FOUR-YEAR LOOKBACK FOR A “FRAUDULENT SCHEME TO INFLATE RENTS” ACTION, THE PLAINTIFF NEED NOT ALLEGE RELIANCE ON A FRAUDULENT REPRESENTATION; IT IS ENOUGH TO ALLEGE SUFFICIENT INDICIA OF FRAUD OR A COLORABLE CLAIM OF FRAUD (CT APP). ​
(1) SENTENCING COURT’S RELIANCE ON A CONFIDENTIAL DOCUMENT IN A PRE-SENTENCE REPORT, AND FAILURE TO INFORM THE DEFENDANT OF THE NATURE OF THE DOCUMENT, VIOLATED DUE PROCESS, (2) SENTENCING COURTS ARE NOT REQUIRED TO PUT THE REASONS FOR DENIAL OF YOUTHFUL OFFENDER STATUS ON THE RECORD.
A REGULATORY AGREEMENT ENTERED INTO BY THE OUT-OF-POSSESSION LANDLORD IN CONNECTION WITH AN FHA MORTGAGE, WHICH REQUIRED THAT THE LANDLORD KEEP THE PROPERTY IN GOOD REPAIR, DID NOT CHANGE THE TERMS OF THE LEASE WHICH MADE THE TENANT RESPONSIBLE FOR REPAIRS; THE OUT-OF-POSSESSION LANDLORD THEREFORE IS NOT LIABLE FOR A SLIP AND FALL CAUSED BY A ROOF LEAK (CT APP).
DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO CHALLENGE THE VERDICT AS REPUGNANT (CT APP).
THERE WAS SUPPORT IN THE RECORD FOR THE LOWER COURTS’ FINDING THE ARRESTING OFFICERS COMPLIED WITH THE DEBOUR STREET STOP REQUIREMENTS, A MIXED QUESTION OF LAW AND FACT, EXTENSIVE DISSENTING OPINION (CT APP).
Defendant Implicitly and Explicitly Waived His Right to Be Present During Side-Bar Conferences

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PROBABLE CAUSE TO ARREST SUPPORTED BY THE RECORD. FAILURE TO TAKE INTO ACCOUNT CONSUMER BRAND PREFERENCE IN EVALUATING A CAR DEALER’S...