You are here: / / UPWARD DEPARTURE FROM THE PRESUMPTIVE RISK LEVEL NOT AUTHORIZED, CRITERIA...
,

UPWARD DEPARTURE FROM THE PRESUMPTIVE RISK LEVEL NOT AUTHORIZED, CRITERIA EXPLAINED.

The Second Department, reversing County Court, determined the upward departure from the presumptive risk level was not authorized. The facts were not discussed but the applicable law was clearly explained:

Once the presumptive risk level has been established at a risk level hearing, the court is permitted to depart from it if “special circumstances” warrant a departure … . An upward departure is permitted only if the court concludes, upon clear and convincing evidence, that there exists an aggravating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines … .

“Under SORA, a court must follow three analytical steps to determine whether or not to order a departure from the presumptive risk level indicated by the offender’s guidelines factor score. At the first step, the court must decide whether the aggravating or mitigating circumstances alleged by a party seeking a departure are, as a matter of law, of a kind or to a degree not adequately taken into account by the guidelines” … . “At the second step, the court must decide whether the party requesting the departure has adduced sufficient evidence to meet its burden of proof in establishing that the alleged aggravating or mitigating circumstances actually exist in the case at hand. If the party applying for a departure surmounts the first two steps, the law permits a departure, but the court still has discretion to refuse to depart or to grant a departure” (id. [citations omitted]). If, however, the People do not satisfy the first two requirements, the court does not have the discretion to upwardly depart from the presumptive risk level … .

Under the circumstances presented, the People did not meet their burden of proof with respect to the first two requirements. Therefore, an upward departure was not authorized … . People v Cassarly, 2017 NY Slip Op 05251, 2nd Dept 6-28-17

 

You might also like
DEFENDANTS DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF LIQUID ON THE DANCE FLOOR IN THE AREA OF PLAINTIFF’S SLIP AND FALL; DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
ALTHOUGH THE CHILD WAS 17 AND HAD A LONG STANDING PARENT-CHILD RELATIONSHIP WITH MOTHER’S HUSBAND, THE DOCTRINE OF EQUITABLE ESTOPPEL SHOULD NOT HAVE BEEN APPLIED TO DISMISS MOTHER’S PETITION FOR GENETIC MARKER TESTING TO DETERMINE PATERNITY; THE CHILD WAS AWARE FROM A YOUNG AGE THAT THE PUTATIVE FATHER WAS THE CHILD’S BIOLOGICAL FATHER AND THERE WAS NO SHOWING THE PATERNITY PETITION WAS NOT IN THE CHILD’S BEST INTERESTS (SECOND DEPT).
THE PETITION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SCHOOL PLAYGROUND ACCIDENT CASE SHOULD NOT HAVE BEEN GRANTED; PETITIONER DID NOT DEMONSTRATE THE SCHOOL HAD TIMELY ACTUAL KNOWLEDGE OF THE POTENTIAL NEGLIGENT-SUPERVISION CLAIM AND PETITIONER DID NOT OFFER A REASONABLE EXCUSE FOR FAILURE TO TIMELY FILE (SECOND DEPT).
IT IS PROPER TO MAKE PARTICIPATION IN COUNSELING A COMPONENT OF A PARENTAL ACCESS ORDER, BUT IT IS IMPROPER TO CONDITION A FUTURE APPLICATION FOR PARENTAL ACCESS ON PARTICIPATION IN COUNSELING (SECOND DEPT).
MORTGAGE COMPANY’S PROOF OF STANDING AND MAILING OF RPAPL 1304 NOTICE INSUFFICIENT IN THIS FORECLOSURE ACTION (SECOND DEPT).
PUTATIVE FATHER’S REQUEST FOR A DNA PATERNITY TEST SHOULD NOT HAVE BEEN DENIED 2ND DEPT.
DEFECT WHICH CAUSED SLIP AND FALL WAS TRIVIAL AS A MATTER OF LAW 2ND DEPT.
PLAINTIFF WAS INVOLVED IN A COLLISION WHICH PUSHED HIS CAR INTO DEFENDANT’S CAR WHICH WAS PARKED ALONG THE CURB IN VIOLATION OF PARKING REGULATIONS; THE LOCATION OF DEFENDANT’S CAR WAS NOT A PROXIMATE CAUSE OF THE ACCIDENT; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (SECOND 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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

TWO OF THE COUNTS TO WHICH DEFENDANT PLED GUILTY WERE NOT SUPPORTED BY THE FACTS... SUPREME COURT DID NOT ERR IN HOLDING THE SORA HEARING IN DEFENDANT’S ABSENCE...