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THEFT DID NOT WARRANT UPWARD DEPARTURE FROM PRESUMPTIVE RISK LEVEL (SECOND DEPT).

The Second Department determined Supreme Court should not have imposed an upward departure from the presumptive risk level based upon a theft:

The defendant’s commission of a theft while the underlying criminal prosecution was pending was a factor not taken into account in the Guidelines … . Moreover, the People proved by clear and convincing evidence that the defendant committed that theft. Nevertheless, the Supreme Court improvidently exercised its discretion in upwardly departing from the presumptive risk level on that basis. That theft, an opportunistic nonviolent theft committed while the defendant was house-sitting for a friend, did not indicate that the presumptive risk level would result in an underassessment of the risk of sexual reoffense … .

In sum, the defendant was properly assessed 75 points … , within the range for a presumptive designation as a level two offender. However, the Supreme Court improvidently exercised its discretion in upwardly departing from the presumptive risk level. Accordingly, we reverse the order appealed from and designate the defendant a level two sex offender. People v Garcia, 2017 NY Slip Op 06199, Second Dept 8-16-17

 

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT, THEFT DID NOT WARRANT UPWARD DEPARTURE FROM PRESUMPTIVE RISK LEVEL (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (THEFT DID NOT WARRANT UPWARD DEPARTURE FROM PRESUMPTIVE RISK LEVEL (SECOND DEPT))/SORA (THEFT DID NOT WARRANT UPWARD DEPARTURE FROM PRESUMPTIVE RISK LEVEL (SECOND DEPT))

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