DEFENDANT’S APPLICATION FOR A DOWNWARD DEPARTURE SHOULD HAVE BEEN CONSIDERED, INSTEAD THE APPLICATION WAS DISMISSED AS ‘PREMATURE,’ MATTER REMITTED (SECOND DEPT).

The Second Department Supreme Court should have considered defendant’a application for a downward departure and remitted the matter:

The Supreme Court is required to make a determination with respect to a defendant’s risk level 30 calendar days prior to discharge, parole, or release (see Correction Law § 168-n). As part of its determination with respect to a defendant’s risk level, the court may depart downwardly from the presumptive risk level. A defendant seeking a downward departure from the presumptive risk level has the 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 [SORA] Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence” … . If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant’s dangerousness and risk of sexual recidivism … .

As the People correctly concede, the Supreme Court should not have denied the defendant’s application for a downward departure as premature, but instead, should have addressed the merits of the application … . People v Powell, 2019 NY Slip Op 05170, Second Dept 6-26-19