The Second Department, reducing defendant’s risk assessment from level 2 to level 1, determined a downward department was appropriate because the statutory rape conviction involved consensual sex and defendant had no other sexual offenses in his history:
In cases of statutory rape, the Board has long recognized that strict application of the Guidelines may in some instances result in overassessment of the offender’s risk to public safety. The Guidelines provide that “[t]he Board or a court may choose to depart downward in an appropriate case and in those instances where (i) the victim’s lack of consent is due only to inability to consent by virtue of age and (ii) scoring 25 points in this category results in an over-assessment of the offender’s risk to public safety” … .
Considering all of the circumstances present here, including that this offense is the only sex-related crime in the defendant’s history, as well as the fact that the defendant’s overall score of 80 points, as reduced by the Supreme Court, was near the low end of the range applicable to a presumptive level two designation (75 to 105 points), the assessment of 25 points under risk factor 2 results in an overassessment of the defendant’s risk to public safety … . Accordingly, a downward departure was appropriate, and the defendant should have been designated a level one sex offender. People v Fisher, 2019 NY Slip Op 07893, Second Dept 11-6-19