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PEOPLE’S REQUEST FOR AN UPWARD DEPARTURE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined the People’s request for an upward departure in this SORA risk assessment proceeding should not have been granted:

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, not otherwise adequately taken into account by the guidelines” … . In determining whether an upward departure is permissible and, if permissible, appropriate, a SORA court must engage in a three-step inquiry. First, the court must determine whether the People have articulated, as a matter of law, a legitimate aggravating factor. Next, the court must determine whether the People have established, by clear and convincing evidence, the facts supporting the presence of that factor in the case before it. Upon the People’s satisfaction of these two requirements, an upward departure becomes discretionary. If, upon examining all of the circumstances relevant to the offender’s risk of reoffense and danger to the community, the court concludes that the presumptive risk level would result in an underassessment of the risk or danger of reoffense, it may upwardly depart … . If, however, the People do not satisfy the first two requirements, the court does not have the discretion to depart from the presumptive risk level… .

In this case, the People failed at the hearing to identify “an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines” … . Specifically, the defendant’s abuse of trust within a family relationship is already adequately accounted for by the Guidelines … . People v Mota, 2018 NY Slip Op 06950, Second Dept 10-18-18

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA) PEOPLE’S REQUEST FOR AN UPWARD DEPARTURE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (PEOPLE’S REQUEST FOR AN UPWARD DEPARTURE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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PLAINTIFF OFFERED DIFFERENT EXPLANATIONS OF THE CAUSE OF HIS FALL, COURT HELD... PAYOR OF VOLUNTARY SPOUSAL SUPPORT SHOULD HAVE BEEN GIVEN CREDIT FOR THOSE PAYMENTS...