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You are here: Home1 / Criminal Law2 / LEVEL THREE ASSESSMENT FOR INFLICTION OF SERIOUS INJURY PROPER EVEN THOUGH ...
Criminal Law, Sex Offender Registration Act (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.

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)

May 3, 2016
Tags: Court of Appeals
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