You are here: / / EVIDENCE SUPPORTING UPWARD DEPARTURE WAS SPECULATIVE AND DID NOT RISE ...
,

EVIDENCE SUPPORTING UPWARD DEPARTURE WAS SPECULATIVE AND DID NOT RISE TO THE LEVEL CLEAR AND CONVINCING.

The Fourth Department, over a two-justice dissent, determined the evidence was not sufficient to justify and upward departure from a Level Two to a Level Three sex offender. Defendant restricted the freedom of a child who subsequently was either released or escaped when her friend, who had escaped, called for her. Defendant was convicted of attempted kidnapping. County Court's upward departure was, in the opinion of the majority, based upon speculation about defendant's motives and intentions, which did not rise to the level of clear and convincing evidence of aggravating circumstances not taken into account by the risk assessment:

We agree with defendant that the court erred in granting the People's request for an upward departure from a presumptive level two risk to a level three risk based upon its assumption that the victim would have suffered greater harm had the other child not intervened and allowed the victim to escape. While it may be reasonable to assume that defendant had sinister intentions when he lured two young children into his home, such an assumption does not constitute the requisite “clear and convincing evidence that there exist aggravating circumstances of a kind or to a degree not adequately taken into account by the risk assessment guidelines”… . People v Baldwin, 2016 NY Slip Op 03609, 4th Dept 5-6-16

CRIMINAL LAW (SORA RISK ASSESSMENT, EVIDENCE SUPPORTING UPWARD DEPARTURE WAS SPECULATIVE AND DID NOT RISE TO THE LEVEL CLEAR AND CONVINCING)/SEX OFFENDER REGISTRATION ACT (EVIDENCE SUPPORTING UPWARD DEPARTURE WAS SPECULATIVE AND DID NOT RISE TO THE LEVEL CLEAR AND CONVINCING)/SORA (EVIDENCE SUPPORTING UPWARD DEPARTURE WAS SPECULATIVE AND DID NOT RISE TO THE LEVEL CLEAR AND CONVINCING)/UPWARD DEPARTURE (SORA, EVIDENCE SUPPORTING UPWARD DEPARTURE WAS SPECULATIVE AND DID NOT RISE TO THE LEVEL CLEAR AND CONVINCING)/EVIDENCE (SORA RISK ASSESSMENT, EVIDENCE SUPPORTING UPWARD DEPARTURE WAS SPECULATIVE AND DID NOT RISE TO THE LEVEL CLEAR AND CONVINCING)

You might also like
Evidence Seized In Violation of Probationer’s Constitutional Rights Should Not Have Been Used as the Basis for a Probation Revocation
Failure of Sentencing Court to Inform Defendant of Period of Post-Release Supervision Required Release after Sentence Served
IN THIS “CHILD VICTIMS ACT” ACTION ALLEGING SEXUAL ABUSE IN THE 1950’S BY EMPLOYEES OF THE NOW DISSOLVED YMCA NIAGARA FALLS, THERE ARE QUESTIONS OF FACT WHETHER THE DE FACTO MERGER DOCTRINE APPLIES RENDERING YMCA BUFFALO LIABLE FOR THE TORTS OF YMCA NIAGARA FALLS (FOURTH DEPT).
Insufficient Proof of Value of Stolen Property, Evidence of Prior Crimes Improperly Admitted, Identification Testimony Improperly Admitted, Prosecutor Improperly Vouched for Witnesses—New Trial Ordered
THE PROSECUTOR VIOLATED THE CRIMINAL PROCEDURE LAW BY REFUSING TO INFORM THE GRAND JURY THE DEFENDANT REQUESTED THE TESTIMONY OF TWO WITNESSES; HOWEVER THE PROSECUTORIAL MISCONDUCT DID NOT WARRANT DISMISSAL OF TWO COUNTS OF THE INDICTMENT; COUNTY COURT REVERSED (FOURTH DEPT). ​
Attorney General’s Medicaid Fraud Control Unit Was Authorized Under Both State and Federal Law to Prosecute a Case Stemming from the Provision of Federal Medicare Services
Evidence Insufficient to Support Reckless Endangerment in the First Degree—No One In Line of Fire
THE TESTIMONY OF THE ACCOMPLICE WAS SUFFICIENTLY CORROBORATED; THE INDICTMENT WAS SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (FOURTH DEPT).

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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

COURT FAILED TO MAKE A MINIMAL INQUIRY INTO DEFENDANT’S COMPLAINT ABOUT... FAMILY COURT ABUSED ITS DISCRETION BY REFUSING TO ALLOW MOTHER TO APPEAR BY...