You are here: / / Downward Departure Warranted in SORA Proceeding Where Victim’s Lack...
,

Downward Departure Warranted in SORA Proceeding Where Victim’s Lack of Consent Was Solely By Virtue of Age

The Second Department, over a dissent, determined the fact that the victim’s lack of consent to sexual intercourse was due solely to the inability to consent by virtue of age warranted a downward departure in a SORA proceeding. The court noted that, although the victim became pregnant, there was no evidence the defendant intended to make the victim pregnant, and the defendant pays child support and visits the child often:

…[T]he SORA Guidelines provide that “[a] court may choose to downwardly depart from the risk assessment 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 [for sexual contact with the victim, risk factor 2] results in an over-assessment of the offender’s risk to public safety'” … . The evidence in this case proves the existence of the facts supporting this ground for departure.It is true, as our dissenting colleague points out, that there was an 11-year difference in age between the defendant and the victim, and that the victim became pregnant as a result of the defendant’s crime. We share our colleague’s concern about these facts and about the significance of the age differential … . Nevertheless, the purposes of the SORA Guidelines are to assess the risk that a sex offender will reoffend and the offender’s threat to public safety (see Correction Law § 168-l[5]). There is no evidence here that the defendant committed his crime with the intention that the victim become pregnant, so the fact that a pregnancy did result is irrelevant to the SORA risk level determination. Moreover, the evidence at the hearing demonstrated that the defendant pays child support to the victim. While, as our dissenting colleague points out, payment of child support is a legal obligation, it was undisputed at the hearing that the defendant not only pays child support, but that he also regularly travels a significant distance to visit the child. People v Marsh, 2014 NY Slip Op 02274, 2nd Dept 4-2-14

 

You might also like
VIDEO SHOWED ELEVATOR DOORS OPERATED PROPERLY, PLAINTIFF ALLEGED INJURY FROM DOORS CLOSING ON HER, SUMMARY JUDGMENT GRANTED TO HOTEL AND ELEVATOR MAINTENANCE COMPANY (SECOND DEPT). ​
Ambiguity in Separation Agreement Construed Against Drafter
THE NONPARTY SUBPOENA SHOULD NOT HAVE BEEN QUASHED AND THE RELATED PROTECTIVE ORDER SHOULD NOT HAVE BEEN ISSUED (SECOND DEPT).
PLAINTIFF, A TRAFFIC ENFORCEMENT OFFICER, WAS WALKING IN THE STREET WHEN DEFENDANT STRUCK HIM AFTER TAKING HIS EYES OFF THE ROAD, PLAINTIFF DID NOT HAVE TO DEMONSTRATE FREEDOM FROM COMPARATIVE FAULT, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​
FAMILY COURT DID NOT HAVE SUFFICIENT EVIDENCE TO DETERMINE IT WAS IN THE CHILD’S BEST INTERESTS TO BE WITH FATHER IN THIS TEMPORARY CUSTODY PROCEEDING, ALLEGATIONS OF EXCESSIVE CORPORAL PUNISHMENT REQUIRED A HEARING (SECOND DEPT).
ALTHOUGH IT IS POSSIBLE TO ENTER AN ‘INFORMAL APPEARANCE’ IN AN ACTION WHICH WILL AVOID A DEFAULT, THE APPEARANCE MUST BE MADE WITHIN THE STATUTORY TIME LIMITS; THE PLAINTIFF BANK’S MOTION FOR A DEFAULT JUDGMENT IN THIS FORECLOSURE ACTION WAS PROPERLY GRANTED (SECOND DEPT).
PLAINTIFF BANK DID NOT DEMONSTRATE IT HAD STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).
THE CERTIFICATES OF ACKNOWLEDGMENT FOR THE DEED AND OTHER DOCUMENTS DEMONSTRATING PLAINTIFF’S OWNERSHIP OF THE REAL PROPERTY CREATED A PRESUMPTION OF DUE EXECUTION WHICH WAS NOT OVERCOME BY DEFENDANTS’ ALLEGATIONS OF FORGERY (SECOND 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

Mischaracterization of a Jury Note Required Reversal Brutality of Offense Warranted an Upward Departure in SORA Proceeding