PEOPLE’S REQUEST FOR AN UPWARD DEPARTURE IN THIS SORA RISK ASSESSMENT PROCEEDING SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

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

The Supreme Court should not have granted the People’s request for an upward departure. “A departure from the presumptive risk level is generally the exception, not the rule. Where the People seek an upward departure, they must identify an aggravating factor that tends to establish a higher likelihood of reoffense or danger to the community not adequately taken into account by the Guidelines, and prove the facts in support of the aggravating factor by clear and convincing evidence” … . If the People do not satisfy these two requirements, “the court does not have the discretion to depart from the presumptive risk level” … .

Here, the People failed to establish that the defendant’s conduct was so brutal, heinous, extreme, or depraved as to amount to an aggravating factor that tends to establish a higher likelihood of reoffense or danger to the community not adequately taken into account by the Guidelines … . People v Murray, 2020 NY Slip Op 03554, Second Dept 6-24-20