Summary
This Appellate Division decision reviews a County Court order designating the appellant as a level two sex offender under New York's Sex Offender Registration Act following his prior Wisconsin sexual assault convictions. The court affirmed the lower court's denial of a downward departure from the presumptive risk level, finding that the mitigating factors raised by the defendant were adequately accounted for in the statutory guidelines and did not warrant a reduction. The appellate court concluded that the County Court providently exercised its discretion in assessing the defendant's dangerousness and risk of recidivism.
Topics
Practice areas
Questions Presented
- Whether the County Court erred in denying the defendant’s application for a downward departure from the presumptive risk level under the Sex Offender Registration Act.
Holdings
- The County Court properly denied the downward departure; the order is affirmed.
Key quotations
“A defendant seeking a downward departure from the presumptive risk level has the initial burden of (1) identifying, 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 Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence.” (235 AD3d at 914-915)
Factual background
In 2017 the defendant was convicted in Wisconsin of two counts of third‑degree sexual assault. After release he moved to New York, where a SORA hearing resulted in an 80‑point risk assessment, a presumptive level‑two designation, and a denied application for a downward departure.
Procedural history
The County Court, Rockland County, after a SORA hearing, assessed the defendant 80 risk points, denied his downward departure request, and designated him a level two sex offender. The defendant appealed.