You are here: / / THE LEVEL-THREE RISK ASSESSMENT WAS NOT MANDATORY AND THE EVIDENCE IN SUPPORT...
, ,

THE LEVEL-THREE RISK ASSESSMENT WAS NOT MANDATORY AND THE EVIDENCE IN SUPPORT OF A DOWNWARD DEPARTURE SHOULD HAVE BEEN CONSIDERED; ON REMAND WRITTEN FINDINGS OF FACT AND CONCLUSIONS OF LAW ARE REQUIRED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the SORA court should not have considered the level three risk assessment mandatory and should have considered the evidence submitted in support of a downward department. On remand, the SORA court was directed to make findings of fact and conclusions of law in writing:

Where a “defendant’s prior felony conviction of a sex crime raised his [or her] presumptive risk level from level two to level three . . . , the [SORA] court is not mandated to apply the override but may, in appropriate circumstances, impose a lower risk level”… .

… Supreme Court, in its oral decision, incorrectly treated defendant’s presumptive level three classification as mandatory, and the court therefore never ruled on his downward departure application. We reject the People’s assertion that the court corrected that error in its subsequent written decision. … [T]he written decision explicitly “incorporates . . . [the] oral decision” and again failed to rule on defendant’s downward departure application. … [T]he “compelling evidence” line in the written decision merely summarized the findings of the Board of Examiners of Sex Offenders and was not  … an independent holding or ruling by the court. People v Douglas, 2021 NY Slip Op 06229, Fourth Dept 11-12-21

 

You might also like
SUPREME COURT MUST RULE ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL BEFORE THE APPELLATE COURT CAN CONSIDER THE ISSUE, MATTER REMITTED FOR A RULING; THE SENTENCE IN THIS DWI CASE WAS ILLEGAL (FOURTH DEPT).
THE JUDGE DID NOT HAVE THE AUTHORITY TO GRANT DEFENSE COUNSEL’S REQUEST FOR A VIDEOTAPE OF AN INTERVIEW OF THE CHILD (ALLEGED) VICTIM IN THIS SEXUAL OFFENSE CASE, THE INTERVIEW WAS CONDUCTED BY A PRIVATE PARTY AND WAS DISCOVERABLE ONLY IF IT CONSTITUTED BRADY (EXCULPATORY) MATERIAL, THE JUDGE DID NOT VIEW THE TAPE TO DETERMINE WHETHER IT WAS BRADY MATERIAL (FOURTH DEPT).
LEGALLY INSUFFICIENT EVIDENCE THAT DEFENDANT WAS THE SHOOTER IN THIS HOME INVASION CASE, FIRST DEGREE MURDER CONVICTION REDUCED TO SECOND DEGREE MURDER (FOURTH DEPT).
EVEN THOUGH THE WRONG CORPORATION WAS NAMED IN THE CONTRACT DEFENDANT SIGNED AS PRESIDENT, DEFENDANT COULD NOT BE HELD PERSONALLY LIABLE, MOTION TO SET ASIDE THE VERDICT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).
THE MEDICAL MALPRACTICE ACTION AGAINST THE RESIDENT WHO PERFORMED THE SURGERY UNDER THE SUPERVISION OF ANOTHER SURGEON SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).
SUPPORT MAGISTRATE SHOULD NOT HAVE AWARDED CHILD SUPPORT TO FATHER; MOTHER WAS ENTITLED TO ARREARS UNDER THE CIRCUMSTANCES OF THIS CASE (FOURTH DEPT).
“REFUSING A BREATH TEST” IS NOT A COGNIZABLE OFFENSE; A CONVICTION IS THEREFORE A FUNDAMENTAL ERROR WHICH MUST BE CORRECTED ON APPEAL EVEN IF THE ISSUE IS NOT BRIEFED (FOURTH DEPT).
HERE THE LANGUAGE IN THE RELEASE WAS CLEAR AND UNAMBIGUOUS AND NONE OF THE TRADITIONAL FACTORS WHICH INVALIDATE A CONTRACT WERE PRESENT; DEFENDANT’S MOTION TO DISMISS THE COMPLAINT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE SUPPRESSION COURT PROPERLY FOUND THE POLICE OFFICERS’ TESTIMONY ABOUT... DEFENDANT’S WAIVER OF APPEAL WAS INVALID; UNWARNED STATEMENTS MADE DURING...