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DEFENDANT PROPERLY ASSESSED 80 POINTS FOR CHILD PORNOGRAPHY IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK LEVEL PROCEEDING, CRITERIA EXPLAINED, DETERMINATION REVERSED HOWEVER BECAUSE COUNTY COURT DID NOT CONSIDER DOWNWARD DEPARTURE REQUEST (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant’s request for a downward departure in this Sex Offender Registration Act (SORA) risk level assessment should have been considered. Defendant was properly assessed 80 points in this child pornography case:

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The Court of Appeals has noted that “the children depicted in child pornography are necessarily counted as victims under [risk] factor 3, and nothing in that factor’s plain terms suggests otherwise. After all, factor 3 permits the assessment of 30 points [where, as here,] [t]here were three or more victims’ involved in a defendant’s current sex crime” … . The Court of Appeals has also made it clear that “the plain terms of [risk] factor 7 authorize the assessment of points based on a child pornography offender’s stranger relationship with the children featured in his or her child pornography files, and thus points can be properly assessed under that factor due to an offender’s lack of prior acquaintance with the children depicted in the files” … . Here, the People established by clear and convincing evidence that the children depicted in the images on defendant’s computer were strangers to defendant. Consequently, the court properly concluded that “defendant should be assessed 30 points under risk factor 3, number of victims,’ based on the numerous child victims depicted in the images he possessed . . . and 20 points under risk factor 7, relationship with victim, stranger,’ [inasmuch] as defendant did not know his child victims.”

We agree with defendant, however, that the court erred in failing to consider his request for a downward departure from the presumptive level two risk yielded by his 80-point total score on the risk assessment instrument … .. We therefore reverse the order and remit the matter to County Court for a determination of whether defendant met his “initial burden of (1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence’ ” …  and, if so, for the court to exercise its discretion whether to grant defendant’s request for a downward departure … . People v Tutty, 2017 NY Slip Op 09029, Fourth Dept 12-22-17

CRIMINAL LAW (SORA, DEFENDANT PROPERLY ASSESSED 80 POINTS FOR CHILD PORNOGRAPHY IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK LEVEL PROCEEDING, DETERMINATION REVERSED HOWEVER BECAUSE COUNTY COURT DID NOT CONSIDER DOWNWARD DEPARTURE REQUEST (FOURTH DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (DEFENDANT PROPERLY ASSESSED 80 POINTS FOR CHILD PORNOGRAPHY IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK LEVEL PROCEEDING, DETERMINATION REVERSED HOWEVER BECAUSE COUNTY COURT DID NOT CONSIDER DOWNWARD DEPARTURE REQUEST (FOURTH DEPT))/DOWNWARD DEPARTURE (SORA, DEFENDANT PROPERLY ASSESSED 80 POINTS FOR CHILD PORNOGRAPHY IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK LEVEL PROCEEDING, DETERMINATION REVERSED HOWEVER BECAUSE COUNTY COURT DID NOT CONSIDER DOWNWARD DEPARTURE REQUEST (FOURTH DEPT))

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THE SORA HEARING JUDGE SHOULD NOT HAVE GRANTED AN UPWARD DEPARTURE, INCREASING DEFENDANT’S SORA RISK LEVEL, BASED ON INFORMATION WHICH WAS NOT IN THE RISK ASSESSMENT INSTRUMENT (RAI) OR RAISED BY THE PEOPLE AT THE HEARING; TO DO SO VIOLATED DEFENDANT’S RIGHT TO DUE PROCESS (FOURTH DEPT).
THE DEFENSE ATTORNEY HAD BEGUN WORKING FOR THE DISTRICT ATTORNEY’S OFFICE AT THE TIME DEFENDANT ENTERED HIS PLEA; DEFENDANT WAS THEREBY DEPRIVED OF HIS RIGHT TO COUNSEL; PLEA VACATED (FOURTH DEPT).
DEFENDANT SUFFICIENTLY RAISED THE FIRST STEP OF A BATSON CHALLENGE TO A PEREMPTORY CHALLENGE EXERCISED BY THE PEOPLE, BUT THE NEXT STEPS IN THE BATSON PROCEDURE WERE NOT TAKEN, ALTHOUGH DEFENDANT WAS CONVICTED AFTER A JURY TRIAL, THE MATTER WAS REMITTED TO COMPLETE THE BATSON PROCEDURE (FOURTH DEPT). 
PLENARY ACTION ALLEGING ATTORNEY MISCONDUCT DURING A FORECLOSURE PROCEEDING PROPERLY BROUGHT UNDER JUDICIARY LAW 487; PRIOR MOTIONS FOR SANCTIONS DID NOT PRECLUDE JUDICIARY LAW 487 ACTION.
THE CONTRACT AT ISSUE WAS NOT FOR THE “SALE OF GOODS” AND THEREFORE WAS NOT SUBJECT TO THE REQUIREMENTS OF THE UNIFORM COMMERCIAL CODE (UCC) (FOURTH DEPT).
NEW YORK DETERMINED TO BE AN INCONVENIENT FORUM IN THIS CUSTODY MATTER (FOURTH DEPT).
DEFENDANT’S CONVICTIONS FOR PREDATORY SEXUAL ASSAULT AGAINST A CHILD AND RAPE AFFIRMED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS, THE DISSENT, APPLYING A WEIGHT OF THE EVIDENCE ANALYSIS, ARGUED THE EVIDENCE DID NOT RISE TO THE LEVEL OF BEYOND A REASONABLE DOUBT (FOURTH DEPT).
THE TESTIMONY OF THE ACCOMPLICE WAS SUFFICIENTLY CORROBORATED; THE INDICTMENT WAS SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (FOURTH DEPT).

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