DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE TO A LEVEL ONE BECAUSE HE HAD BEEN AT LIBERTY FOR 17 YEARS WITHOUT REOFFENDING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant was entitled a downward departure to level one because he had been at liberty for 17 years without reoffending:

In light of the purpose of SORA, which is to assess the risk that the offender poses while at liberty, lengthy periods during which the defendant has been at liberty after the offense are significant in determining the risk of reoffense and the danger posed in the event of reoffense … . Since these periods are not taken into account in the risk assessment instrument, they are a permissible ground for departure … . Here, the defendant was released from prison for the underlying sex offense in 2002. In the time between his release and the SORA hearing, which was held in 2019, the defendant was at liberty for approximately 17 years without reoffending. In light of the lengthy amount of time without reoffense, we designate the defendant a level one sex offender … . People v Gurley, 2023 NY Slip Op 02686, Second Dept 5-17-23

Practice Point: Here the defendant was entitled to a downward departure to a level one sex offender because he had been at liberty for 17 years without reoffending.