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Criteria for Downward Departure in SORA Proceeding Explained

The Second Department explained the criteria for a downward departure in a SORA proceeding:

A court has the discretion to downwardly depart from the presumptive risk level in a proceeding pursuant to SORA (see Correction Law article 6-C) only when the defendant makes a twofold showing … . The defendant must first identify, as a matter of law, an appropriate mitigating factor, namely, a factor which “tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] Guidelines” (…see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006 ed]). Next, the defendant must prove by a preponderance of the evidence the facts necessary to support the applicability of that mitigating factor … . In the absence of this twofold showing, the court lacks discretion to depart from the presumptive risk level … . Here, the defendant failed to make the requisite showings. Consequently, the Supreme Court did not have the discretion to depart from the presumptive risk level … . People v Ologbonjaiye, 2013 NY Slip Op 05807, 2nd Dept 9-11-13

 

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SORA Court Has Discretion to Deny Downward Departure Even When Mitigating Factor Demonstrated by Preponderance of Evidence

In affirming the SORA court’s denial of an application for a downward departure, the Second Department noted that even where the defendant makes a showing by a preponderance of the evidence in support of a mitigating factor, the court need grant the application:”

A sex offender’s successful showing by a preponderance of the evidence of facts in support of an appropriate mitigating factor does not automatically result in the relief requested, but merely opens the door to the SORA court’s exercise of its sound discretion upon further examination of all relevant circumstances'” … .  People v Martinez-Guzman, 2013 NY Slip Op 05561, 2nd Dept 8-7-13

 

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Insufficient Evidence of History of Alcohol and Drug Abuse in SORA Proceeding

The Fourth Department determined there was insufficient evidence in a SORA proceeding to find defendant had a history of alcohol and drug abuse.  The case summary stated that “Probation identified [defendant’s] continued drug and alcohol abuse as problematic, and he refused to attend treatment for th[at] problem.”  The Court wrote:

There is …no evidence that defendant was ever screened for substance abuse issues …, “only very limited information about his alleged prior history of drug and alcohol abuse” …, and no information about what treatment was recommended or why treatment was recommended ….  Under these circumstances, the case summary alone is insufficient “to satisfy the People’s burden of establishing that risk factor by clear and convincing evidence” ….

Further, defendant’s prior convictions for criminal possession and sale of marihuana and criminal possession of a controlled substance in the seventh degree do not constitute clear and convincing evidence that defendant used drugs, let alone that he had a history of abusing them … .  During the presentence investigation, defendant never admitted to using drugs or alcohol, and he denied abusing any substances at the SORA hearing … Defendant’s admission that he was intoxicated during a previous incident, which led to a rape charge that was subsequently dismissed, is insufficient to establish that his sexual misconduct can “be characterized by repetitive and compulsive behavior[] associated with drugs or alcohol” (Correction Law § 168-l [5] [a] [ii]), especially because defendant does not have any other history of intoxication with respect to his sexual offenses, including the instant offenses ….  Consequently, as noted, the People failed to meet their burden of establishing by clear and convincing evidence that defendant had a history of alcohol or drug abuse… .  People v Coger, 815, 4th Dept 7-19-13

 

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In SORA Proceeding, Child Pornography Properly Considered Under Factor 7 (“Relationship Between Offender and Victim”)

In affirming a SORA determination, the Fourth Department noted that the 20 point assessment under risk factor 7 (entitled “Relationship Between Offender and Victim”), based upon the defendant’s pleading guilty to receiving child pornography (a federal statute), was appropriate:

With respect to …the 20 points assessed under risk factor 7, we note that the underlying conviction was a federal offense to which defendant pleaded guilty to receiving child pornography (18 USC 2252 [a] [2]).  Although the Court of Appeals has stated that “[i]t does not seem that factor 7 was written with possessors of child pornography in mind” …, the Court of Appeals determined that points were properly assessed under risk factor 7 in a case where the defendant was convicted of possessing child pornography….  Consequently, we conclude that the court here properly assessed points under risk factor 7. People v Noyes, 687, 4th Dept 7-19-13

 

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SORA Court’s Failure to Issue Written Findings Required Remittal

The Third Department remitted a SORA proceeding because the court did not set forth in its written order its findings of fact and conclusions of law with respect to defendant’s application for a downward departure and the oral findings were not sufficiently detailed for adequate review.  People v Filkins, 514025, 3rd Dept, 6-6-13

 

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SORA Determination without Board Recommendation Okay When Defendant Released Same Day as He Was Sentenced

The Third Department determined the SORA court could make a SORA level assessment without a recommendation from the Board of Examiners of Sex Offenders.  The facts of the case did not fall into any of the categories listed in the SORA statute which allows an assessment without a Board recommendation when the defendant is not incarcerated and requires a Board assessment before discharge when the defendant is incarcerated.  Here the defendant was released from incarceration on the day he was convicted. In holding the SORA properly made the assessment in the absence of a Board recommendation, the Third Department wrote:

Although SORA charges the Board with responsibility for making a risk level recommendation relative to incarcerated offenders, the ultimate responsibility for the risk level determination  is vested  in the  sentencing  court, which  “‘in the exercise of its discretion, may depart from [the Board’s] recommendation and determine the sex offender’s risk level based upon  the facts and circumstances that appear in the record'”…. In our view, this judicial obligation necessarily includes the authority to determine the appropriate procedure for a  risk level determination where,  as  here, the circumstances are not fully addressed by the SORA statutory scheme. This conclusion is supported by the statutory provisions addressing failures by  the  Board  to complete its statutory obligation; where the Board fails to issue a timely recommendation, SORA  provides that the court must nonetheless make  a risk level determination and, if it cannot do  so before the offender is discharged, must “expeditiously complete the hearing  and  issue its determination”  after his or  her  release (Correction Law § 168-l [8]). In effect, that is the procedure that County Court followed here.  People v Grimm, 104233, 3rd Dept, 6-6-13

 

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Absence of Evidence of Physical Injury Precluded 15 Point Assessment for Violence in SORA Proceeding

The First Department determined the SORA court improperly assessed 15 points for violence because there was insufficient evidence of physical injury:

The court erred in assessing 15 points under the risk factor for use of violence, because the People did not meet their burden of establishing, by clear and convincing evidence, that defendant caused physical injury (see Penal Law 10.00[9]) to the victim. Although minor injuries may cause substantial pain, a showing of “more than slight or trivial pain” is required …. The People do not dispute defendant’s assertion that the photographs of the injuries depicted only “faint marks and superficial scratches.” Although evidence of medical treatment is unnecessary to establish physical injury …, here the victim’s bare statement that her knee “hurt” was insufficient to support the inference that she suffered substantial pain, given the absence of evidence that she even used ice or an over-the-counter pain reliever. Furthermore, the injury was not sustained as a result of a deliberate assault or other act supporting an inference that it caused substantial pain …. Therefore, the court should have assessed 10 points for forcible compulsion, but not 15 points. People v Quito, 2013 NY Slip Op 03938, 1st Dept, 6-4-13

 

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SORA Amendments Did Not Render Statute Punitive—Ex Post Facto Clause Not Applicable​

In a full-fledged opinion by Justice Andrias, the First Department determined the amendments to the Sex Offender Registration Act (SORA) did not render the statute punitive and thereby violate the Ex Post Facto Clause or violate the Double Jeopardy prohibition with respect to the defendant:

It may be true that subjecting sex offenders to lifetime registration and notification requirements, with their attendant obligations and restrictions, increases the difficulties and embarrassment a sex offender may endure, even where he has led a law-abiding life since his conviction. However, in assessing the constitutionality of a statute, this Court does not review the merits or wisdom of the Legislature’s decisions on matters of public policy …, and the fact that the restrictions are difficult and cumbersome is not enough to make them unconstitutional. Although “one can argue that such laws are too extreme or represent an over-reaction to the fear of sexual abuse of children, . . . they do not violate the ex post facto clause . . . . People v Parilla, 2013 NY Slip Op 03931, 1st Dept, 5-30-13

 

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SORA Applies to Out of State Sex Offense

In affirming Supreme Court’s determination that petitioner (who pled nolo contendre to a sex offense in Florida and was registered as a sex offender in Florida) must register as a sex offender in New York (upon moving to New York), the Second Department wrote:

SORA provides that any “sex offender” must comply with its provisions (see Correction Law § 168-f). A “sex offender” is defined as “any person who is convicted” of a “sex offense” (Correction Law § 168-a[1], [2]). The definition of a “sex offense” with respect to an offense committed in another jurisdiction is “a conviction of [i] an offense in any other jurisdiction which includes all of the essential elements of any such crime” that constitutes a “sex offense” under SORA (Correction Law [*2]§ 168-a[2][d][i]). The statute also provides that a “sex offense” includes a “conviction of . . . [ii] a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred” (Correction Law § 168-a[2][d][ii]). Matter of Kasckarow v Board of Examiners of Sex Offenders of State of NY, 2013 Slip Op 03485, 2nd Dept, 5-15-13

 

 

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Criteria for Downward Departure (SORA)​

The Second Department explained the two factors a defendant must demonstrate for a downward departure in a SORA proceeding:

First, a defendant must identify, as a matter of law, an appropriate mitigating factor, namely, a factor which “tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the [SORA] Guidelines”…. Second, a defendant must prove by a preponderance of the evidence the facts necessary to support that mitigating factor …. In the absence of that twofold showing, the court lacks discretion to depart from the presumptive risk level …. People v Henry, 2013 NY Slip Op 03309, 2nd Dept, 5-8-13

 

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