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SORA COURT PROPERLY REJECTED DOWNWARD DEPARTURE BECAUSE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD DID NOT INVOLVE A SEXUAL OFFENSE.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a two-judge dissent, determined the SORA court did not err when it assessed 30 points for defendant's prior conviction (involving a different victim) for endangering the welfare of a child which did not involve a sexual offense. Based upon the language of the guidelines. the majority concluded the non-sexual offense could properly be considered subject to a possible downward departure. Here the SORA court, taking into consideration all the relevant evidence, was deemed justified in rejecting a downward departure:

As we recently stated, “[i]n determining whether to depart from a presumptive risk level, the hearing court weighs the aggravating or mitigating factors alleged by the departure-requesting party to assess whether, under the totality of the circumstances, a departure is warranted” … . Here, the only mitigating factor defendant presented to the SORA court was that the prior endangering the welfare of a child conviction was not sexual in nature. Although the SORA court considered this argument when deciding whether to downwardly depart, it certainly was not required to consider the mitigating factor in a vacuum without considering any aggravating factors that would weigh against a downward departure … . In this case, there were numerous aggravating factors not adequately captured by the [risk assessment] that countered defendant's argument for a downward departure. Therefore, the SORA court did not abuse its discretion in determining that the “totality of the circumstances” did not warrant a downward departure because such a departure would have resulted in an “under-assessment of the defendant's dangerousness and risk of sexual recidivism” … . People v Sincerbeaux, 2016 NY Slip Op 05062, CtApp 6-28-16

CRIMINAL LAW (SORA COURT PROPERLY REJECTED DOWNWARD DEPARTURE BECAUSE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD DID NOT INVOLVE A SEXUAL OFFENSE)/EVIDENCE (CRIMINAL LAW, SORA, SORA COURT PROPERLY REJECTED DOWNWARD DEPARTURE BECAUSE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD DID NOT INVOLVE A SEXUAL OFFENSE)/SEX OFFENDER REGISTRATION ACT (SORA) (SORA COURT PROPERLY REJECTED DOWNWARD DEPARTURE BECAUSE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD DID NOT INVOLVE A SEXUAL OFFENSE)/SORA (SORA COURT PROPERLY REJECTED DOWNWARD DEPARTURE BECAUSE CONVICTION FOR ENDANGERING THE WELFARE OF A CHILD DID NOT INVOLVE A SEXUAL OFFENSE)

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