NO SHOWING THAT POST TRAUMATIC STRESS DISORDER OR A TRAUMATIC BRAIN INJURY INCREASED THE RISK OF REOFFENSE, APPELLATE DIVISION EXERCISED ITS OWN DISCRETION AND REDUCED DEFENDANT’S RISK LEVEL FROM TWO TO ONE (FOURTH DEPT).

The Fourth Department, reversing County Court, determined that defendant should have been adjudicated a level one, not a level two risk:

Although defendant was diagnosed with PTSD [post traumatic stress disorder] and may have sustained a TBI traumatic brain injury], the record is devoid of evidence that any such mental impairment “is causally related to a[ ] risk of reoffense” … . …

Nor is the continuing nature of the crime sufficient to support the upward departure because, even if additional points were assessed for risk factor 4, i.e., continuing course of sexual misconduct, defendant’s total risk factor score would not result in defendant’s classification as a presumptive level two risk … . Further, there is no basis for an upward departure where, as here, the alleged aggravating factor is adequately taken into account by the risk assessment guidelines … . Finally, although we conclude that defendant’s actions in taking the victim across state lines constitute an aggravating factor that is, “as a matter of law, of a kind or to a degree not adequately taken into account by the [risk assessment] guidelines” … , we further conclude that the court improvidently exercised its discretion in granting an upward departure based on that factor under the circumstances of this case. We therefore substitute our own discretion … . People v Logsdon, 2019 NY Slip Op 00998, Fourth Dept 2-8-19