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IN THIS STATUTORY RAPE CASE WHERE THE VICTIM WAS FIVE YEARS YOUNGER THAN DEFENDANT, DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE FROM LEVEL TWO TO LEVEL ONE (SECOND DEPT).

The Second Department reduced defendant’s SORA risk level from two to one. This was a statutory rape case in which the victim was five years younger than defendant:

“In cases of statutory rape, the Board [of Examiners of Sex Offenders] 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 [under risk factor 2, sexual contact with the victim,] results in an over-assessment of the offender’s risk to public safety” … .

Here, considering all of the circumstances, including the five-year age difference between the defendant and the victim, the fact that the defendant’s overall score of 75 points was near the low end of the range applicable to a presumptive level two designation, and that the subject offense is the only sex-related crime in the defendant’s history, the assessment of 25 points under risk factor 2 results in an overassessment of the defendant’s risk to public safety … . Accordingly, a downward departure is warranted, and the defendant should be designated a level one sex offender. People v Rivera, 2025 NY Slip Op 00467, Second Dept 1-29-25

Practice Point: Here, in reducing defendant SORA risk level from two to one, the court noted that the risk to the public can be over-assessed in statutory rape cases where the defendant and the victim are close in age.​

 

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