ALTHOUGH A DEFENDANT CAN PROPERLY REQUEST A DOWNWARD DEPARTURE FROM THE SORA RISK-LEVEL ASSESSMENT BASED ON HIS “RELEASE ENVIRONMENT.” I.E., GAINFUL EMPLOYMENT, STRONG FAMILY SUPPORT, ETC., THE DEFENDANT MUST DEMONSTRATE THE “RELEASE ENVIRONMENT” WAS NOT ADEQUATELY TAKEN INTO ACCOUNT BY THE GUIDELINES AND HIS “RELEASE ENVIRONMENT” REDUCES THE LIKELIHOOD OF REOFFENDING (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro. over a three-judge concurrence, affirming the Appellate Division, determined that a defendant’s “release environment” can be considered as a basis for a downward departure, but that the Appellate Division properly found defendant did not demonstrate his “release environment” made his reoffending less likely and his “release environment” had been adequately accounted for by the Guidelines:

In support of his downward departure request, defendant emphasized that he had been living offense-free in the community for the 3½ years since his release from incarceration and argued that there were mitigating factors not adequately accounted for by the Guidelines, including, as relevant here, his gainful full-time employment and strong family support. He explained that he had worked as a food delivery driver, obtained his commercial driver’s license, become a full-time truck driver, and eventually purchased his own tractor-trailer and founded a freight trucking business. Additionally, defendant supplemented his income by working nights and weekends parking cars as a production assistant on film sets. He viewed his recent history of full-time employment as a significant contributor to a reduced risk of reoffense, characterizing his past crimes as being “financially motivated.” In further support of this proposed mitigating factor, defendant cited to statistics documenting the difficulties faced by many formerly incarcerated people, especially sex offenders, in obtaining employment, as well as a publication concerning the importance of structured, full-time employment in preventing recidivism. To establish his alleged strong family support network, defendant referenced his committed relationship with the mother of his young child, and submitted brief letters from four family members and a former landlord asserting that he was a family-oriented man who had been rehabilitated. He also cited to Appellate Division caselaw treating strong family support as a mitigating factor. Defendant maintained that a departure to risk level one would provide adequate supervision and community notification, without overestimating his likelihood of reoffense. * * *

The potentially risk-reducing effects of … steady employment in an appropriate setting or housing with, or in close proximity to, supportive family or friends …can be asserted as mitigating circumstances … so long as the offender can establish that those circumstances are present to a degree not adequately accounted for by the Guidelines … . * * *

The Appellate Division did not err or abuse its discretion in denying defendant’s request for a downward departure. Significantly, the Court did not expressly reject defendant’s proposed mitigating factors as a matter of law, but went on to conclude that he failed to meet his burden of establishing that the proposed mitigating factors existed in this case. … [T]he Court … concluded … defendant failed * * * to demonstrate how “his support system” would reduce his risk of reoffense … . People v Green, 2026 NY Slip Op 03378, CtApp 5-28-26

Practice Point: A defendant’s “release environment” (gainful employment, family support, etc.) can be considered by a SORA court as a mitigating factor supporting a downward departure. Here the SORA court properly considered defendant’s “release environment” but determined his environment was adequately taken into account by the guidelines and defendant did not demonstrate how his “release environment” would make his reoffending less likely.​