People v. Minkeson

Summary

The Appellate Division, Second Department reversed a County Court order designating Patrick C. Minkeson a level three sexually violent offender under SORA. The court held that although the risk assessment points and aggravating factors were properly determined, an upward departure was not warranted because the defendant was not the principal offender in the sexual assault and a level two designation did not overassess his risk.

Holdings

1. The County Court properly assessed 30 points under risk factor 1 because the defendant's display of a gun and threat to shoot the victims constituted clear and convincing evidence that the gun was a dangerous instrument.
2. The County Court properly assessed 25 points under risk factor 2 because the defendant pleaded guilty to first-degree rape, an offense containing sexual intercourse as an essential element, and facilitated the rape by standing guard over the other victims.
3. A court considering departure from a presumptive SORA risk level must determine whether the alleged circumstances are inadequately accounted for by the Guidelines, whether the circumstances are established by the required proof, and whether, in the exercise of discretion, the totality of the circumstances warrants departure.
4. The County Court improvidently exercised its discretion by granting an upward departure to level three; the defendant must instead be designated a level two sexually violent offender.

Questions Presented

1. Whether the County Court properly assessed 30 points under SORA risk factor 1 for possession or use of a dangerous instrument.
2. Whether the County Court properly assessed 25 points under SORA risk factor 2 for sexual contact with or sexual intercourse involving the victim.
3. Whether the County Court properly granted the People's application for an upward departure from the presumptive level two risk designation to level three.
4. Whether the defendant's status as a nonprincipal offender and the totality of the circumstances warranted retaining the presumptive level two designation.

Disposition

reversed