You are here: / / DEFENDANT’S BIPOLAR DIAGNOSIS AND A STATEMENT INDICATING HIS FAILURE...
, ,

DEFENDANT’S BIPOLAR DIAGNOSIS AND A STATEMENT INDICATING HIS FAILURE TO TAKE RESPONSIBILITY FOR THE OFFENSE DID NOT JUSTIFY AN UPWARD DEPARTURE FROM SORA RISK-LEVEL TWO TO THREE; TWO JUSTICE DISSENT (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, determined the People did not demonstrate that an upward departure from SORA risk-level two to three was warranted:

… [W]e conclude that the People failed to prove by clear and convincing evidence that defendant is more likely to reoffend based on his bipolar diagnosis. The only evidence offered by the People at the SORA hearing was the report prepared by defendant’s expert, who opined that “impaired judgment is a common disability in Bipolar Disorder, as is impulsiveness.” The expert further opined that defendant’s “judgment was impaired by his disorder” when he committed the crimes, and that he “acted impulsively because of his then undiagnosed (and inadequately treated) illness.” The fact that defendant’s bipolar condition may have impaired his judgment and decreased his ability to control impulsive sexual behavior when he committed the qualifying offenses does not mean, ipso facto, that he is at a greater risk of reoffending in the future as a result of his bipolar condition. Defendant’s mental illness was undiagnosed and untreated when he committed the qualifying offenses, and there is no evidence in the record indicating a reluctance or inability on defendant’s part to follow treatment recommendations and take prescribed medications now that he has been properly diagnosed.

We further conclude that an upward departure was not warranted based on defendant’s post-offense statement to one of the victims. Although the statement in question may show, as the People asserted, that defendant failed to accept responsibility for his crimes, an offender’s failure to accept responsibility is taken into account under risk factor 12 on the risk assessment instrument. Thus, an upward departure cannot be granted based on defendant’s statement … . People v Cohen, 2024 NY Slip Op 05658, Fourth Dept 11-15-24

Practice Point: Here defendant’s bipolar diagnosis and a statement to the victim indicating his failure to take responsibility for the offense did not justify an upward department from SORA risk-level two to three. The evidence did not demonstrate the bipolar disorder increased the risk of reoffending and the statement was already taken into account under risk factor 12.

 

You might also like
PETITIONER SOUGHT TO DEMONSTRATE THAT HIS DECEASED MOTHER DID NOT HAVE THE CAPACITY TO EXECUTE A DOCUMENT DESIGNATING RESPONDENT AS HER AGENT TO CONTROL THE DISPOSITION OF HER REMAINS; PETITIONER SUBMITTED PROOF HIS MOTHER HAD BEEN DIAGNOSED WITH DEMENTIA, BUT DEMENTIA IS NOT THE EQUIVALENT OF INCOMPETENCE OR INCAPACITY; THE PETITION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).
THE JURY’S FINDING THAT DEFENDANT’S ACTIONS IN THIS MANSLAUGHTER CASE WERE NOT JUSTIFIED WAS AGAINST THE WEIGHT OF THE EVIDENCE, CONVICTION REVERSED AND INDICTMENT DISMISSED 4TH DEPT.
POLICE DID NOT HAVE A REASONABLE SUSPICION OF CRIMINAL ACTIVITY AT THE TIME DEFENDANT WAS STOPPED ON THE STREET, SHOWUP IDENTIFICATION SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).
PROSECUTORIAL MISCONDUCT WARRANTED A NEW TRIAL IN THE INTEREST OF JUSTICE WITHOUT ANY NEED TO EVALUATE THE EFFECT OF THE ERRORS ON THE CONVICTION.
Respondent Failed to Demonstrate Insertion of Feeding Tube Would Impose an “Extraordinary Burden” Upon the Petitioner​
QUESTION OF FACT WHETHER THE “DANGER INVITES RESCUE” DOCTRINE APPLIED; PLAINTIFF ALLEGEDLY HURT HER BACK TRYING TO PREVENT A PATIENT FROM FALLING WHEN DEFENDANT’S EMPLOYEE IMPROPERLY USED A HOYER LIFT TO TRANSFER THE PATIENT FROM A WHEEL CHAIR TO A BED (FOURTH DEPT).
THE COURT OF CLAIMS PROPERLY DISMISSED THE CLAIM FINDING THAT CLAIMANT’S DECEDENT WOULD HAVE BEEN KILLED IN THE CAR ACCIDENT EVEN IF THE PROPER W BEAM AS OPPOSED TO THE IMPROPER BOX BEAM HAD BEEN ERECTED AS A BARRIER ACROSS THE CLOSED BRIDGE; TWO JUSTICE DISSENT ARGUED THE MAJORITY IMPROPERLY APPLIED A “BUT FOR” STANDARD OF CAUSATION (FOURTH DEPT).
THE JUDGE SHOULD NOT HAVE CONSIDERED A NEW ARGUMENT RAISED FIRST IN REPLY; THE HOLDER OF AN EASEMENT OVER THE PARKING LOT, NOT THE OWNER OF THE PARKING LOT, IS PRIMARILY RESPONSIBLE FOR KEEPING THE LOT FREE OF ICE AND SNOW, NOTWITHSTANDING AN AGREEMENT BETWEEN THE EASEMENT HOLDER AND THE OWNER IN WHICH THE OWNER AGREED TO REMOVE ICE AND SNOW (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 NEW YORK STATUTE DESIGNATING DEFENDANT A SEXUALLY VIOLENT OFFENDER WOULD... THE COVID-19 TOLLS SUSPENDED THE RUNNING OF THE STATUTE OF LIMITATIONS IN THIS...