20 POINTS SHOULD NOT HAVE BEEN ASSESSED UNDER RISK FACTOR 7 (RELATIONSHIP WITH THE VICTIM) BECAUSE THE VICTIM WAS NOT A STRANGER; ALTHOUGH SUBTRACTING 20 POINTS WOULD RESULT IN A LEVEL TWO SEX OFFENDER CLASSIFICATION, THE MATTER WAS SENT BACK BECAUSE THE PEOPLE INDICATED IF DEFENDANT WAS NOT DESIGNATED A LEVEL THREE OFFENDER THEY WOULD SEEK AN UPWARD DEPARTURE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined 20 points should not have been assessed under risk factor 7 (relationship with the victim) because the victim and defendant were not strangers. The People conceded there was a familial relationship:

Supreme Court improperly assessed 20 points under risk factor 7 (relationship with victim), since the People failed to establish by clear and convincing evidence that the defendant and the victim were strangers to each other … . To the contrary, the People conceded that the defendant and the victim had a familial relation, which is “specifically excluded by the Commentary and by the plain language of the Guidelines” with respect to risk factor 7 … .

Thus, 20 points must be deducted from the total risk assessment of 120 points, which places the defendant’s point score within the range of a level two sexually violent offender. Nevertheless, since the record of the SORA hearing reflects that the People would have sought an upward departure had the Supreme Court not designated the defendant a level three sexually violent offender, we remit the matter … to determine whether an upward departure is warranted and for a new determination of the defendant’s risk level … .  People v Perez, 2023 NY Slip Op 01108, Second Dept 3-1-23

Practice Point: Defendant should not have been assessed 20 points under risk factor 7 because the victim was not a stranger. Subtracting 20 points designated defendant a level two sex offender. Because the People indicated they would seek an upward departure if defendant was not designated a level three offender, the matter was remitted.