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THE SORA COURT SHOULD HAVE CONSIDERED THAT THE DEFENDANT DID NOT REOFFEND DURING AN EXTENDED TIME WHEN HE WAS NOT SUPERVISED AS A MITIGATING FACTOR WHICH MAY WARRANT A DOWNWARD DEPARTURE IN THIS SORA RISK-LEVEL PROCEEDING (FOURTH DEPT).

The Fourth Department, reversing (modifying) County Court, determined County Court should have considered whether a downward department from the risk-level guidelines was warranted. Defendant, through and oversight, with respect to a previous conviction, was not registered as a sex offender and did not reoffend despite the absence of supervision:

… [T]he fact that defendant was at liberty while unsupervised for an extended period of time without any reoffending conduct is a mitigating factor not adequately taken into account by the guidelines … , and it is undisputed that defendant established the existence of that mitigating factor by a preponderance of the evidence … .

In view of the [SORA] court’s conclusion, it did not exercise its discretion to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of defendant’s dangerousness and risk of sexual recidivism. … [W]e reverse the order and remit the matter to County Court to make that determination … . People v Edwards,  2021 NY Slip Op 07359, Fourth Dept 12-23-21

 

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