RISK ASSESSMENT REDUCED FROM TWO TO ONE; DEFENDANT WAS CONVICTED OF STATUTORY RAPE WHEN HE WAS 22; THE VICTIMS, WHO WERE 15 AND 16, INITIATED THE CONSENSUAL ENCOUNTER (SECOND DEPT).

The Second Department, reducing defendant’s risk assessment to level one, determined the Louisiana statutory rape conviction did not warrant a 25 point assessment. The defendant was 22 at the time and the victims, who initiated the consensual encounter, were 15 and 16:

“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 [risk factor 2, for sexual contact with the victim] 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, the defendant accepted responsibility for his crimes and was sentenced minimally in Louisiana, the assessment of 25 points under risk factor 2 results in an overassessment of the defendant’s risk to public safety … . People v Brocato, 2020 NY Slip Op 06295, Second Dept 11-4-20