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AN AUTOMATIC OVERRIDE ALLOWING A LEVEL THREE RISK ASSESSMENT WAS PROPERLY APPLIED TO A PSYCHOLOGICAL ABNORMALITY NOT SPECIFICALLY MENTIONED IN THE SORA RISK LEVEL GUIDELINES (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Maltese, determined the automatic override justifying a level three risk level was properly based upon a psychological abnormality not specifically mentioned in the risk assessment guidelines, but included in the Diagnostic and Statistical Manual of Mental Disorders:

In the Guidelines, the Board explained that it “chose to require a clinical assessment of an abnormality so that loose language in a pre-sentence report would not become the basis for an override. Examples of a clinical assessment that would support an override are pedophilia and sexual sadism” (Guidelines at 19 …). The Guidelines do not contain any language limiting the application of the fourth override to these two examples, and there is no requirement that a psychological abnormality must be inherently sex-related in order for the fourth override to apply … . * * *

The People submitted, among other things, a psychologist’s report in which the psychologist concluded, based on a clinical assessment, that the defendant suffered from schizoaffective disorder, that he experienced “periods of agitation and disorganized behavior,” and “presents as hypersexual with low impulse control when decompensated.” The psychologist further concluded that the nature of the defendant’s illness placed him at an elevated risk of violence, which would likely take the form of inappropriate sexual conduct. This evidence established that there has been a clinical assessment that the defendant has a psychological, physical, or organic abnormality that decreases his ability to control impulsive sexual behavior. People v Odiari, 2020 NY Slip Op 04882, Second Dept 9-2-20

 

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