New York Appellate Digest
  • Home
  • About
  • Just Released
  • Update Service
  • Streamlined Research
  • CLE Courses
  • Contact
  • Menu Menu
You are here: Home1 / Criminal Law2 / EVIDENCE SUPPORTING UPWARD DEPARTURE WAS SPECULATIVE AND DID NOT RISE ...
Criminal Law, Sex Offender Registration Act (SORA)

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)

May 6, 2016
Tags: Fourth Department
Share this entry
  • Share on WhatsApp
https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 CurlyHost https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png CurlyHost2016-05-06 18:58:392020-01-28 15:17:52EVIDENCE SUPPORTING UPWARD DEPARTURE WAS SPECULATIVE AND DID NOT RISE TO THE LEVEL CLEAR AND CONVINCING.
You might also like
Contract Could Potentially Be Performed Within a Year—Dismissal on Statute of Fraud Grounds Properly Denied
Defendant’s Motion to Vacate His Conviction, Supported by Evidence that (1) the People May Have Violated Their “Brady” Obligation to Inform the Defense of a Plea Deal Made In Return for Testimony and (2) a Juror May Have Had a Mental Disability, Should Not Have Been Denied Without a Hearing
Malicious Prosecution Action Against County, Medical Examiner and District Attorney Survived Motion to Dismiss/Prosecutorial and Governmental Immunity Doctrines Explained
DEFENDANT WAS CONVICTED OF STABBING THE VICTIM AT A CROWDED PARTY BUT NO ONE SAW DEFENDANT WITH A KNIFE; DEFENSE REQUEST FOR THE CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GRANTED; CONVICTION REVERSED (FOURTH DEPT).
THE PROFESSIONAL EMPLOYEE AGREEMENT, WHICH PROVIDED FOR THE SHARING OF CONTINGENCY FEES FOR CASES RETAINED BY AN ATTORNEY WHO LEAVES THE FIRM, DID NOT VIOLATE ETHICS RULES AND SHOULD HAVE BEEN ENFORCED (FOURTH DEPT). ​
WHERE THERE ARE MULTIPLE EXCESS COVERAGE POLICIES COVERING THE SAME RISK, THE EXCESS COVERAGE CLAUSES CANCEL EACH OTHER OUT (FOURTH DEPT).
THE EVIDENCE OF ESCAPE IN THE FIRST DEGREE WAS LEGALLY INSUFFICIENT; DEFENDANT WAS NOT YET IN CUSTODY WHEN HE DROVE AWAY AS A POLICE OFFICER ATTEMPTED TO PULL HIM FROM HIS CAR (FOURTH DEPT).
Motion to Vacate Conviction Should Not Have Been Granted—Hearsay Statement Exonerating Defendant Did Not Meet the Criteria for a Statement Against Penal Interest and Should Not Have Been Admitted—The Underlying Evidence Was Not Newly Discovered Because Defendant Was Aware of It at the Time of Trial–Defendant Did Not Provide the Evidence at Trial Because He Feared Retaliation by Gang Members

Categories

  • Abuse of Process
  • Account Stated
  • Accountant Malpractice
  • Administrative Law
  • Agency
  • Animal Law
  • Appeals
  • Arbitration
  • Architectural Malpractice
  • Associations
  • Attorneys
  • Banking Law
  • Bankruptcy
  • Battery
  • Chiropractor Malpractice
  • Civil Commitment
  • Civil Conspiracy
  • Civil Forfeiture
  • Civil Procedure
  • Civil Rights Law
  • Condominium Corporations
  • Condominiums
  • Constitutional Law
  • Consumer Law
  • Contempt
  • Contract Law
  • Conversion
  • Cooperatives
  • Copyright
  • Corporation Law
  • Correction Law
  • County Law
  • Court of Claims
  • Criminal Law
  • Debtor-Creditor
  • Defamation
  • Dental Malpractice
  • Disciplinary Hearings (Inmates)
  • Education-School Law
  • Election Law
  • Eminent Domain
  • Employment Law
  • Engineering Malpractice
  • Environmental Law
  • Equitable Recoupment
  • Evidence
  • Fair Credit Reporting Act
  • Fair Housing Act
  • Fair Housing Amendments Act
  • False Arrest
  • False Claims Act
  • False Imprisonment
  • Family Law
  • Federal Employers' Liability Act (FELA)
  • Fiduciary Duty
  • Foreclosure
  • Fraud
  • Freedom of Information Law (FOIL)
  • Human Rights Law
  • Immigration Law
  • Immunity
  • Indian Law
  • Insurance Law
  • Intellectual Property
  • Intentional Infliction of Emotional Distress
  • Involuntary Medical Treatment and Feeding (Inmates)
  • Judges
  • Labor Law
  • Labor Law-Construction Law
  • Land Use
  • Landlord-Tenant
  • Legal Malpractice
  • Lien Law
  • Limited Liability Company Law
  • Longshoreman's and Harbor Worker's Compensation Act
  • Malicious Prosecution
  • Maritime Law
  • Medicaid
  • Medical Malpractice
  • Mental Hygiene Law
  • Military Law
  • Money Had and Received
  • Municipal Law
  • Navigation Law
  • Negligence
  • Negligent Infliction of Emotional Distress
  • Negligent Misrepresentation
  • Notarial Misconduct
  • Nuisance
  • Partnership Law
  • Personal Property
  • Pharmacist Malpractice
  • Physician Patient Confidentiality
  • Pistol Permits
  • Prima Facie Tort
  • Private Nuisance
  • Privilege
  • Products Liability
  • Professional Malpractice
  • Public Authorities Law
  • Public Corporations
  • Public Health Law
  • Public Nuisance
  • Real Estate
  • Real Property Actions and Proceedings Law (RPAPL)
  • Real Property Law
  • Real Property Tax Law
  • Religion
  • Replevin
  • Retirement and Social Security Law
  • Securities
  • Sepulcher
  • Sex Offender Registration Act (SORA)
  • Social Services Law
  • Statutes
  • Tax Law
  • Tenant Harassment
  • Tortious Interference with Contract
  • Tortious Interference with Employment
  • Tortious Interference with Prospective Business Relations
  • Tortious Interference With Prospective Economic Advantage
  • Town Law
  • Toxic Torts
  • Trade Secrets
  • Trademarks
  • Trespass
  • Trusts and Estates
  • Uncategorized
  • Unemployment Insurance
  • Unfair Competition
  • Uniform Commercial Code
  • Usury
  • Utilities
  • Vehicle and Traffic Law
  • Victims of Gender-Motivated Violence Protection Law (VGM)
  • Village Law
  • Water Law
  • Workers' Compensation
  • Zoning

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...
Scroll to top