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DEFENDANT DEMONSTRATED HE WAS UNLIKELY TO REOFFEND; THEREFORE, DESPITE THE SERIOUSNESS OF HIS SEX OFFENSES, HE WAS ENTITLED TO A REDUCTION OF HIS RISK LEVEL FROM THREE TO ONE (SECOND DEPT).

The Second Department, modifying the SORA court, in a comprehensive, full-fledged opinion by Justice Austin, determined defendant sex offender was entitled to a downward modification of his risk assessment from level three to level one:

The defendant’s submissions demonstrated that, through his long-term sobriety, strong family support, faith-based and law abiding lifestyle, continuous employment despite his numerous physical disabilities and age, his risk of reoffending is so diminished that a further reduction from his current risk level two to risk level one is appropriate … . * * *

… [I]f a defendant served his or her sentence, rehabilitated himself or herself, and demonstrated no actual likelihood of reoffending, a reduction to a risk level one classification from a level three classification should be a possibility. …

In modifying the Supreme Court’s order which reduced the defendant’s sex offender risk level classification from three to two, and thereby granting the petition to further reduce the defendant’s sex offender risk level designation to a level one, we are not signaling a departure from our strict interpretation of the Guidelines and the legislative history of SORA. Rather, we are following the law, and the policy underlying it, as it applies to this defendant. That is, it is not out of sympathy for his physical condition nor with a blind eye to the defendant’s significant criminal past that we render our determination. Rather, we consider these as well as all of the factors—positive and negative—presented at the hearing on his petition for a downward modification in deciding the singular question presented: Did the defendant establish, by clear and convincing evidence, that the risk he poses to the community as a convicted sex offender warrants a downward modification to level one? We answer that question in the affirmative.

To hold otherwise ignores the sincere, positive strides the defendant has made to be a productive, positive member of society. By using the disturbing nature of one’s crime as the tipping point in the analysis of a petition such as the one before this Court comes dangerously close to saying, if not holding, that once one has committed a sex crime and has been designated a sex offender level, there is no way he or she can ever be rehabilitated to a legally sufficient extent to warrant a downward modification to the lowest level of supervision. If that were so, then the cited portions of the Guidelines and Correction Law § 168-o(2), which allow annual reevaluation of a defendant’s risk level after it is initially established, would be rendered without meaning and illusory. People v Davis, 2019 NY Slip Op 08720, Second Dept 12-4-19

 

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