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THE SORA RISK-LEVEL GUIDELINES CONSIDER A SEX OFFENDER’S YOUTH (UNDER 20) AS AN AGGRAVATING FACTOR WARRANTING AN ASSESSMENT OF TEN POINTS; HERE DEFENDANTS ARGUED THEIR YOUTH SHOULD BE CONSIDERED A MITIGATING FACTOR; THAT ISSUE CAN ONLY BE ADDRESSED BY THE LEGISLATURE, NOT THE COURTS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a three-judge concurrence, determined the defendants’ young age at the time of the offenses (below 20) was adequately taken into account by the SORA risk-level guidelines in that the guidelines assess additional points based on an offender’s youth. In other words, the guidelines consider the offender’s youth as an aggravating factor for which 10 points is assessed. The defendants’ argument that their youth should be a mitigating factor can only be addressed by the legislature, not the courts:

Defendants’ argument that scientific research suggests that young age at the time of offense lowers the risk of reoffense and so is a mitigating factor meriting a downward departure amounts to a policy dispute with the legislature’s instruction to the Board to consider that factor, and with the Board’s corresponding decision to include age below 20 at the time of first offense as a basis for the assessment of ten points in the RAI [risk assessment instrument]—not an argument that the RAI does not “fully capture the nuances of [their] case” … . It is the Board that has a “legislative mandate to promulgate” the Guidelines … , and disagreement with the basis on which a factor is premised or with the manner in which the Board implements that mandate is “for the legislature and the Board to consider, and not within the scope of this Court’s authority” … . Indeed, ” ‘[t]he constitutional principle of separation of powers . . . requires that the Legislature make the critical policy decisions’ ” … . Here, the legislature did that by instructing the Board to consider as “indicative of a high risk of repeat offense” “the age of the sex offender at the time of the commission of the first sex offense” (Correction Law § 168-l [5] [a] [v], [d]). The Board, based on its expertise and experience and within the exercise of its discretion, in turn implemented this legislative directive by requiring the assessment of points under risk factor 8 where an offender committed a first sex offense before the age of 20 … . There is no legal basis for reaching the opposite conclusion in the guise of a judicially-fashioned “mitigating” factor. The legislature, and in turn the Board, may of course reconsider this approach to age as an indicator of likelihood of reoffense. People v Carnegie, 2026 NY Slip Op 03379, CtApp 5-28-26

Practice Point: A defendant seeking a downward departure from the SORA risk-level assessment cannot argue the defendant’s youth as a mitigating factor. The guidelines consider a defendant’s youth as an aggravating factor requiring the assessment of ten points. Only the legislature can change the guidelines.

 

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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.​

 

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HERE THE SORA RISK-LEVEL GUIDELINES DID NOT ADEQUATELY TAKE INTO ACCOUNT DEFENDANT’S ATYPICAL CRIMINAL HISTORY; THEREFORE AN UPWARD DEPARTURE FROM LEVEL ONE TO LEVEL TWO WAS APPROPRIATE (CT APP). ​

The Court of Appeals, affirming the SORA court and the Appellate Division, determined the SORA risk-level guidelines did not adequately take into account the defendant’s criminal history which supported an upward departure to a level two sex offender:

… [A]n offender’s prior criminal history can warrant an upward SORA departure in an appropriate case. Although such history is plainly a factor “of a kind” contemplated by the Guidelines under risk factors 9 and 10, an offender’s atypical prior criminal history may be an aggravating factor “to a degree” for which the Guidelines inadequately account … .

This case proves the point. The timing, nature, and extent of defendant’s three sex offenses and violent felony supply record support for the affirmed finding that defendant’s prior criminal history was indeed atypical. Risk factor 9 relevantly assesses the maximum 30 points for a prior “violent felony, . . . misdemeanor sex crime, or endangering the welfare of a child, or any . . . sex offense” (Guidelines, risk factor 9 [emphasis added]). Defendant’s prior conviction of attempted first-degree robbery, or either of his two prior convictions of forcible touching, would thus have each independently yielded 30 points under this factor. Defendant stood convicted of all three crimes, yet he was assessed the same number of points under this factor as a defendant previously convicted of just one of them. Likewise, risk factor 10 assesses the maximum 10 points for committing the instant offense within three years at liberty after committing a felony or sex crime. Here, defendant committed the instant offense after eight months at liberty following his commission of a prior felony, yet he was assessed the same number of points under this factor as a defendant who abstains from reoffending for more than four times as long. Given these facts, the lower courts did not err in concluding that risk factors 9 and 10 inadequately accounted for defendant’s prior criminal history as an aggravating factor. People v Townsend, 2026 NY Slip Op 03377, CtApp 5-28-26

Practice Point: Where the SORA risk-level guidelines do not adequately take into account a defendant’s atypical criminal history, an upward departure is appropriate.

 

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DEFENDANT’S “EXCEPTIONAL RESPONSE” TO THE “SEX OFFENDER COUNSELING AND TREATMENT PROGRAM” WARRANTED A DOWNWARD DEPARTURE FROM A LEVEL TWO SEX OFFENDER TO A LEVEL ONE SEX OFFENDER (THIRD DEPT). ​

The Third Department, reversing County Court, determined defendant was entitled to a downward departure from a level two sex offender to a level one sex offender based on his successful participation in sex offender treatment:

… [D]efendant submitted the monthly evaluations prepared by his instructor in his Sex Offender Counseling and Treatment Program. In the six monthly evaluations, defendant was awarded 95 out of a maximum of 96 points available, placing him in the “highly motivated” classification for each month, the highest category. Further, the instructor consistently praised defendant’s participation, including comments that defendant “continues to engage positively in program [and] exceed all program standards,” “continues to excel in program” and “continues to meet [and] exceed all program standards.” Given his nearly perfect score and the positive comments from his instructor, we conclude that defendant has demonstrated, by a preponderance of the evidence, an exceptional response to treatment so as to be a basis for a downward departure … . People v Mikalonis, 2026 NY Slip Op 03210, Third Dept 5-21-26

 

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THE FEDERAL CHILD-PORNOGRAPHY CRIME OF WHICH DEFENDANT WAS CONVICTED WAS BASED ON CONDUCT WHICH HAD NOT BEEN CRIMINALIZED BY A NEW YORK STATUTE AT THE TIME OF DEFENDANT’S CONVICTION; THEREFORE DEFENDANT SHOULD NOT HAVE BEEN ADJUDICATED A SEX OFFENDER UNDER SORA (FIRST DEPT).

The First Department, vacating Supreme Court’s sex offender adjudication, over an extensive dissent, determined that the federal crime of which defendant was convicted was not encompassed by New York State criminal law at the time of defendant’s conviction. The defendant sent images of adult bodies engaged in sexual conduct with his 16-year-old cousin’s (the victim’s) face superimposed on the images:

Defendant was convicted under 18 USC § 1466A(a)(1)(A) which proscribes images created, adapted or modified to appear as though an identifiable minor is engaging in sexual conduct, otherwise known as “morphed” child pornography. We agree with our dissenting colleague that defendant’s actions were deplorable. Nevertheless, we are constrained to find that this conduct does not give rise to criminal liability under the analogous New York State statute, Penal Law § 263.15, as it existed at the time of [defendant’s] conviction. Therefore, the court erred in adjudicating defendant a sex offender. People v Lewis, 2026 NY Slip Op 01016, First Dept 2-24-26

Practice Point: Here defendant was convicted of a federal child-pornography offense for conduct which was not covered by a New York criminal statute. Therefore defendant could not be adjudicated a sex offender based on the federal conviction.

 

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THE SIX-YEAR DELAY BETWEEN DEFENDANT’S SEXUAL-MISCONDUCT GUILTY PLEA AND THE SORA RISK-ASSESSMENT HEARING DID NOT DEPRIVE DEFENDANT OF HIS RIGHT TO DUE PROCESS OF LAW (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two-judge concurrence, determined that the six-year delay between defendant’s guilty plea to sexual misconduct and the SORA risk-level assessment hearing did not deprive defendant of his right to due process of law:

Defendant pled guilty to one count of sexual misconduct, a sex offense requiring registration under the Sex Offender Registration Act (SORA). Nevertheless, defendant was not notified of his SORA registration requirements, and approximately six years passed from the time of his plea before this mistake was brought to the attention of the Board of Examiners of Sex Offenders. After a full, albeit delayed, SORA proceeding, defendant was designated a level one sex offender, the least restrictive designation available, with the required twenty-year registration period ordered nunc pro tunc from the date of his release. Defendant claims that the delay between his plea and his SORA hearing violated his substantive due process rights. We disagree and hold that defendant failed to make the required showing that the delay prejudiced his ability to present his case to the SORA court and for that reason, we affirm. People v Collier, 2026 NY Slip Op 00074, CtApp 1-8-26

Practice Point: Consult this opinion for a discussion of the substantive and procedural due process protections raised by a six-year delay in holding a SORA risk-level assessment hearing.

 

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THERE WAS NO EVIDENCE DEFENDANT USED DRUGS TO EXCESS AT THE TIME OF THE OFFENSE OR IN THE PAST; THE 15 POINT ASSESSMENT UNDER RISK FACTOR 11 WAS THEREFORE ELIMINATED, REDUCING THE RISK LEVEL FROM THREE TO TWO (SECOND DEPT). ​

The Second Department, reducing the SORA risk assessment from level three to level two, determined the evidence did not support assessing 15 points for using drugs to excess:

“In order to support the assessment of points under risk factor 11, . . . the People must show by clear and convincing evidence that the offender used drugs or alcohol in excess either at the time of the crime or repeatedly in the past” … . Here, the People failed to present clear and convincing evidence that the defendant’s marijuana use on the date of the offense was excessive or “causally linked to the sexual assault” … . The People’s evidence was also insufficient to establish that the defendant used marijuana or other substances in excess repeatedly in the past … . Without the assessment of points under risk factor 11, the defendant’s point total was 100, which is within the range for a presumptive level two designation. People v Gregory, 2025 NY Slip Op 07420, Second Dept 12-31-25

 

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REMITTAL IS NECESSARY BECAUSE THE SORA RISK-LEVEL-ASSESSEMENT WAS NOT SUPPORTED IN THE RECORD BY FINDINGS OF FACT AND CONCLUSIONS OF LAW AS REQUIRED BY THE CORRECTION LAW; DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THAT AN AVAILABLE GROUND FOR A DOWNWARD DEPARTURE WAS NOT RAISED (THIRD DEPT).

The Third Department, reversing County Court, determined (1) appellate review of the SORA risk-level assessment was precluded by the judge’s failure to place on the record its findings of fact and conclusions of law as required by the Correction Law, and (2) defendant did not receive effective assistance of counsel in that there was a ground for a downward departure which was not raised. Defendant was assessed 30 points based on a prior conviction for endangering the welfare of a child. However there was no sexual offense involved in that conviction and a downward departure was therefore possible:

“The failure to include the necessary findings prevents this Court from conducting a meaningful appellate review of defendant’s designation as a risk level two sex offender and would, alone, require remittal for County Court to comply with the statute” (… see Correction Law § 168-n [3] …). * * *

… County Court was required to assess 30 points under risk factor 9 based upon defendant’s undisputed prior conviction of endangering the welfare of a child, “without regard to whether the underlying offense involved conduct that is sexual in nature” … . This is because “[t]he Board decided to treat endangering the welfare of a child as if it were a sex crime because it generally involves sexual misconduct, especially when it is part of a plea bargained disposition” … . However, the risk assessment guidelines also provide that, “[w]here a review of the record indicates that there was no such [sexual] misconduct, a departure may be warranted” … . People v Pribble, 2025 NY Slip Op 06936, Third Dept 12-11-25

Practice Point: If a SORA risk-level-assessment is not supported by findings of fact and conclusions of law in the record appellate review is not possible and remittal is required.

Practice Point: If, as here, there is an available ground for a downward departure which is not raised, the defendant did not receive effective assistance of counsel.

 

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THE WAS NO PROOF DEFENDANT VOLUNTARILY WAIVED HIS RIGHT TO BE PRESENT AT THE SORA RISK-LEVEL HEARING; ORDER REVERSED AND MATTER REMITTED FOR A NEW HEARING (SECOND DEPT).

The Second Department, reversing the SORA risk-level determination, held that the record did not establish that defendant waived his right to be present at the risk-level hearing:

“A sex offender facing risk level classification under SORA has a due process right to be present at the SORA hearing” (… see Correction Law § 168-n[3]). “To establish whether a defendant, by failing to appear at a SORA hearing, has waived the right to be present, evidence must be shown that the defendant was advised of the hearing date, of the right to be present at the hearing, and that the hearing would be conducted in his or her absence” … . “Before proceeding in the defendant’s absence, the court must make an inquiry and recite on the record the facts and reasons it relied upon in determining that the defendant’s absence was deliberate” (… see Correction Law § 168-n[6]). Here, defense counsel expressly stated that the defendant was not waiving his right to be present after he failed to appear for the SORA hearing, and there is no evidence in the record that the defendant was made aware of the consequences of failing to appear for the SORA hearing or that his absence … was deliberate.

Since the record fails to establish that the defendant voluntarily waived his right to be present at the SORA hearing, the order must be reversed and the matter remitted to the Supreme Court, Kings County, for a new risk level assessment hearing and a new determination thereafter, to be preceded by notice to the defendant in accordance with Correction Law § 168-n(3). People v Blount, 2025 NY Slip Op 05972, Second Dept 10-29-25

Practice Point: Consult this decision for insight into what must be placed on the record to explain a defendant’s absence from a SORA risk-level-assessment proceeding.

 

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THE JUDGE’S ASSESSING SORA RISK-LEVEL POINTS NOT REQUESTED BY THE PEOPLE VIOLATED DEFENDANT’S RIGHT TO DUE PROCESS OF LAW; THE JUDGE FAILED TO MAKE THE FINDINGS REQUIRED BY THE CORRECTION LAW FOR AN UPWARD DEPARTURE; DETERMINATION VACATED (FOURTH DEPT).

The Fourth Department, reversing the SORA risk level determination, held that the judge violated defendant’s right to due process of law by assessing points that were not requested by the People, and violated the Correction Law requirements for imposing an upward departure:

Although defendant failed to object to the assessment of points … when the court rendered its oral decision, we “review defendant’s contention in the interest of justice in light of the substantial infringement upon [her] due process and statutory rights” … .

… [T]he court failed to comply with the requirement of Correction Law § 168-n (3) that it set forth the findings of fact and conclusions of law upon which it based its decision to grant the People’s request for an upward departure … . In its decision, the court merely concluded, under the first part of the relevant three-part analysis, that the People had identified “aggravating . . . circumstances . . . of a kind or to a degree not adequately taken into account by the guidelines” … . At no time in its decision did the court render a determination on the other two parts of the relevant analysis. Rather, after identifying the aggravating circumstances, the court conclusorily granted the People’s application for an upward departure, without ever “weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over- or under-assessment of the defendant’s dangerousness and risk of sexual recidivism” … . People v Ridley, 2025 NY Slip Op 05599, Fourth Dept 10-10-25

Practice Point: If a judge assesses SORA risk-level points not requested by the People, the defendant’s due process rights are violated.

Practice Point: In granting an upward departure in a SORA risk-level-assessment proceeding, the judge must make the findings required by the Correction Law.

 

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