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
IN THIS DRUG OFFENSE TRIAL, COURT SHOULD NOT HAVE ALLOWED IMPEACHMENT OF DEFENDANT WITH EVIDENCE OF PRIOR DRUG-RELATED CONVICTIONS.
EQUIVOCAL AND UNSUBSTANTIATED EVIDENCE OF DEFENDANT’S DRUG ABUSE WAS NOT ENOUGH TO JUSTIFY THE 15-POINT DRUG-ABUSE ASSESSMENT UNDER SORA (FOURTH DEPT).
ISSUE OF FACT WHETHER DRIVER WITH THE RIGHT OF WAY SHOULD HAVE SEEN THE CAR THAT WAS NOT SLOWING DOWN AS IT APPROACHED THE INTERSECTION, SUPREME COURT REVERSED, TWO-JUSTICE DISSENT (FOURTH DEPT).
HERE PLAINTIFFS ALLEGED THEY WERE SEXUALLY ABUSED DECADES AGO IN MASSACHUSETTS AND SUED UNDER THE CHILD VICTIMS ACT WHICH SERVES TO EXTEND THE STATUTE OF LIMITATIONS; ORDINARILY THE BORROWING STATUTE APPLIES TO OUT-OF-STATE TORTS REQUIRING THE ACTION TO BE TIMELY UNDER BOTH NEW YORK AND THE FOREIGN STATE’S LAWS; HERE THE “RESIDENT EXCEPTION” APPLIED BECAUSE THE PLAINTIFF’S WERE NEW YORK RESIDENTS AT THE TIME OF THE ALLEGED ABUSE; THEREFORE THE ACTION NEED ONLY BE TIMELY UNDER NEW YORK’S CHILD VICTIMS ACT (FOURTH DEPT).
IN THIS CHILD PORNOGRAPHY CASE, COMPELLING DEFENDANT TO UNLOCK THE CELL PHONE WITH HIS FINGERPRINT AMOUNTED TO TESTIMONIAL EVIDENCE THAT HE OWNED, CONTROLLED AND HAD ACCESS TO THE CONTENTS OF THE PHONE, A VIOLATION OF HIS FIFTH AMENDMENT RIGHT AGAINST SELF-INCRIMINATION; THE MOTION TO SUPPRESS THE TESTIMONIAL EVIDENCE AND THE CONTENTS OF THE PHONE SHOULD HAVE BEEN GRANTED (FOURTH DEPT).
JUDGE SHOULD HAVE MADE AN INQUIRY INTO ALLEGATIONS OF JUROR BIAS BASED UPON AN OBSERVATION DURING A RECESS, NEW TRIAL ORDERED.
THE MAJORITY HELD THE INSTALLATION OF AN AIR TANK ON A FLATBED TRAILER WAS NOT A COVERED ACTIVITY UNDER LABOR LAW 240(1); THE DISSENT ARGUED THE TRAILER WAS A “STRUCTURE” WITHIN THE MEANING OF THE STATUTE (FOURTH DEPT). ​
A MEDICAL CORPORATION CAN BE LIABLE IN TORT FOR FAILURE TO SAFEGUARD THE CONFIDENTIALITY OF MEDICAL RECORDS (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...