The First Department took the unusual step of reducing defendant’s SORA risk level from three to two. Defendant committed a heinous rape 30 years ago when he was using drugs and alcohol. While in prison defendant earned two bachelor degrees and completed many therapeutic programs:
The Court of Appeals has enunciated a three-step process for determining whether to depart downward from a defendant’s presumptive risk level … . First, a court must decide whether the proffered mitigating circumstance or circumstances are “of a kind, or to a degree, not adequately taken into account by the guidelines” … . Second, a court must determine whether the defendant seeking a downward departure has proven the existence of these alleged mitigating circumstances by a preponderance of the evidence … . If the defendant surmounts these first two steps, a court must then exercise its discretion and determine at the final third step, “whether the totality of the circumstances warrants a departure” …. .
Here, we find that, under this three-step analysis, a departure to level two is warranted. Initially, we note that defendant has met his burden of proving the existence of mitigating circumstances unaccounted for in the Guidelines by a preponderance of the evidence. Defendant’s remarkable rehabilitation and his pain and mobility problems constitute, in this case, the sort of “special circumstances” for which a downward departure is appropriate … . Moreover, defendant supported his application with a number of exhibits, including his degrees, his medical records, and his letters of recommendation. People v Williams, 2017 NY Slip Op 01988, 1st Dept 3-21-17
CRIMINAL LAW (FIRST DEPARTMENT REDUCED DEFENDANT’S SORA RISK LEVEL FROM THREE TO TWO, BASED PRIMARILY UPON DEFENDANT’S USE OF EDUCATIONAL AND REHABILITATIVE RESOURCES WHILE IN PRISON)/SEX OFFENDER REGISTRATION ACT (SORA) (FIRST DEPARTMENT REDUCED DEFENDANT’S SORA RISK LEVEL FROM THREE TO TWO, BASED PRIMARILY UPON DEFENDANT’S USE OF EDUCATIONAL AND REHABILITATIVE RESOURCES WHILE IN PRISON)