A FAMILIAL RELATIONSHIP BETWEEN THE SEX OFFENDER AND THE VICTIM (HERE DEFENDANT’S YOUNG STEPDAUGHTER) DOES NOT INCREASE THE RISK TO THE PUBLIC AND THEREFORE CANNOT, STANDING ALONE, BE THE BASIS FOR AN UPWARD DEPARTURE FROM THE RISK ASSESSMENT GUIDELINES (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Mastro, determined the existence of a family relationship between the sex offender and the victim (here the defendant’s young stepdaughter) cannot, standing alone, be the basis for an upward departure from the risk assessment guidelines. The purpose of the risk assessment is to assess the threat posed to the public by a defendant. Abuse of a family member, as opposed to a stranger, does not pose a greater risk to the public:

… [T]he inclusion of familial relationships in … risk factor [7] was … expressly considered—and deliberately rejected—by the Board based on its determination that offenders who victimize family members do not pose the same risk of recidivism or danger to the community as offenders who target strangers. * * *

Inasmuch as the Board has already determined in the Guidelines that a familial relationship between an offender and his or her victim does not warrant the imposition of points on the RAI [risk assessment instrument] because it poses a comparatively lower risk of reoffense and danger to the public, that relationship, without more, likewise will not constitute an appropriate aggravating factor to justify an upward departure to a higher risk level. People v Rodriguez, 2021 NY Slip Op 03475, Second Dept 6-2-21