Second Department: Mistake to Grant Upward Departure
At a SORA hearing following his conviction of misdemeanor sexual abuse, the defendant was presumptively designated a level two (moderate) risk to reoffend. The defendant had testified that he had intended to engage in sexual intercourse with the teenage victim, but decided against it because he did not have a condom. The hearing court concluded that the fact that he had initially intended to engage in sexual intercourse warranted an upward departure to risk level three. The Appellate Division reversed this ruling and classified the defendant as a level two risk.
Joshua M. Levine briefed the appeal for Appellate Advocates.