Issues In NY Criminal Law--Vol. 6, #11^©

The Guidelines and Commentary of the Board of Examiners of Sex Offenders, as well as the Risk Assessment Instrument (RAI), contain four "overrides" that automatically result in a presumptive risk assessment of Level 3:

• prior felony conviction for a sex crime
• infliction of serious physical injury or causing death. The term "serious physical injury" is defined in Penal Law §10.00(10).
  An override was found proper in a First Department case. While the offender was assessed points for violence, there was no double assessment where serious physical injury occurred. People v Dorsett, 35 AD3d 279, 826 NYS2d 242 (1st Dept 2006).
• recent threat to reoffend by committing a sexual or violent crime
• clinical assessment of a psychological, physical or organic abnormality
  Where the offender's conduct was not controllable when he was noncompliant with prescribed medications, the RAI's Level 1 rating (recommended by the Board to be increased to Level 2) was raised to Level 3 based based upon mental abnormality. People v Andrychuk, __ AD3d __, __ NYS2d __, 2007 WL 779106 (4th Dept 2007). See also, People v Vasquez, 37 AD3d 193, 829 NYS2d 475 (1st Dept 2007).

Upward Departure

The SORA guidelines borrow language from federal sentencing procedures of "upward departure" and "downward departure" in allowing a variance in the risk level as calculated by the RAI's numerical score.

A departure from the RAI is warranted only where an aggravating or mitigating factor exists of a kind, or to a degree not otherwise adequately taken into account by the guidelines. The finding should be based on special, nonduplicative circumstances. People v Joslyn, 27 AD3d 1033, 811 NYS2d 807 (3d Dept 2006). There must be clear and convincing evidence of the existence of a special circumstance to warrant any departure. People v Dexter, 21 AD3d 403, 799 NYS2d 807 (2d Dept 2005); People v Inghilleri, 21 AD3d 404, 799 NYS2d 793 (2d Dept 2005).

Double Counting

One problem that may arise, particularly with departures, is that of double counting. People v Fisher, 22 AD3d 358, 803 NYS2d 45 (1st Dept 2005). Points in one risk factor may instead require assessment in another factor. See People v Smith, 35 AD3d 693, 828 NYS2d 112 (2d Dept 2006).

In one appeal, where certain RAI factors (prior conviction and alcohol abuse) were already considered and the offender assessed the maximum number of points for those categories, upward departure was inappropriate. People v Mount, 17 AD3d 714, 792 NYS2d 697 (3d Dept 2005).

Even where there is no duplication of points, an upward departure might be sought where the Board seeks, not to add points, but instead to raise the offense level. This may be improper: for example, if 20 points are normally assessed for certain conduct, yet an increase in a full risk level is sought, that may penalize the offender beyond the points allocated in the RAI.

Upward Departure Appropriate

Upward departure was found appropriate in the following cases:

• The offender's articulated desire was to be a spokesperson for an organization advocating sexual contact between adult males and minor boys. People v Kwiatkowski, 24 AD3d 878, 805 NYS2d 188 (3d Dept 2005).
• The paternal relationship between offender and victim, that victim was helpless when left alone with the offender, and guns threats warranted upward departure. People v Ferrer, 35 AD3d 297, 826 NYS2d 70 (1st Dept 2006).

Upward Departure Inappropriate

Upward departure was inappropriate in the following:

• The offender led an exemplary life for 17 years, which was not considered by the RAI or by the court's decision in a redetermination proceeding. People v Abdullah, 31 AD3d 515, 818 NYS2d 267 (2d Dept 2006).
• The factors justifying a departure were ones for which the offender was already assessed points. People v Foley, 35 AD3d 1240, 826 NYS2d 868 (4th Dept 2006).
• Mental illness did not warrant upward departure. The record was devoid of evidence that the mental illnesses were causally related to any risk of reoffense or indicated any risk of recidivism, and threats had already been taken into account in the RAI. People v Zehner, 24 AD3d 826, 804 NYS2d 852 (3d Dept 2005).

Downward Departure

Under the Board's guidelines, a downward departure may occur where the offender suffers from a physical condition that minimizes the risk of reoffense, such as advanced age or debilitating illness. See Corr Law §168-l(5)(d).

The hearing court erred where it stated it was powerless to consider potential mitigation circumstances of drug treatment, when SORA requires the court to determine mitigating circumstances for downward departure. People v McCormick, 21 AD3d 1221, 801 NYS2d 432 (3d Dept 2005).

The following have merited downward departure:

• extraordinary rehabilitative efforts, People v S.G., 4 Misc3d 563, 776 NYS2d 449 (Sup 2004).

Downward Departure Inappropriate

The following have been found not to require downward departure:

• age, health and criminal history. People v Mothersell, 26 AD3d 620, 808 NYS2d 510 (3d Dept 2006).
• acceptance of responsibility for conduct. See People v Dort, 18 AD3d 23, 792 NYS2d 236 (3d Dept 2005).

QUOTATION:
"A language is a dialect that has an army and a navy."
Max Weinreich

SLANGUAGE:
video surveillance warrant
State. Court order allowing police to use television camera or similar device, whether or not recorded. CPL article 700, CPL 700.05(9). People v Teicher, 52 NY2d 638, 439 NYS2d 846 (1981).

Gary Muldoon is a member of the Assigned Counsel panel in Monroe County author of Handling a Criminal Case in New York (West Group 2006). Call 1-800-328-4880 or contact the West Group website at www.west.thomson.com. Cost of the soft cover edition is $241.00.

Criminal Law Slanguage of New York, Third Edition, by G. Edward Murray and Gary Muldoon, is published by LexisNexis Publications. Price: $19.00. Contact www.lexis.com.

Gary Muldoon
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