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Total Risk Factor Score… cont.

In the Court’s prior decision, the Criminal Court noted that the SORA Risk Assessment Guidelines and Commentary provide that a defendant’s concurrent or subsequent criminal history may be the basis for an upward departure if it provides reason to believe that the offender poses an increased risk to public safety. The Court cited the holding in People v Barad, in which the Second Department held that a court may depart from the presumptive risk level determined by the risk assessment instrument based upon the facts in the record and that a departure from the presumptive risk level is warranted where there exists aggravating or mitigating facts of a kind or to a degree not otherwise taken into account by the guidelines. The question, then is whether the defendant’s two convictions, one for assault in New Jersey and one for Sex Abuse in the Third Degree committed after the defendant’s release from incarceration on the instant matter, are an appropriate basis for an upward departure.

The court is of the opinion that the defendant’s two convictions, particularly the one involving the sexual abuse of two different women, are clearly relevant to the court’s assessment of the defendant’s “risk to public safety.” These convictions are not “otherwise taken into account by the guidelines,” and thus may be considered in the context of an upward departure as ruled in the case of People v Miller and People v Mudd. Although defendant’s subsequent conviction in New Jersey cannot be considered a “prior crime”, this does not mean that the conviction should not be disregarded.

The same is true for the 2006 conviction for Sexual Abuse in the Third Degree. As the Court has already pointed out, the SORA guidelines specifically provide that although concurrent or subsequent criminal history is not covered under Factor 9 of the guidelines, it may be the basis for an upward departure if it provides reason to believe that the offender possesses an increased risk to public safety akin to People v Barad where the Second Department held that a court may depart from the presumptive risk level determined by the risk assessment instrument based upon the facts in the record and that a departure from the presumptive risk level is warranted where there exists aggravating or mitigating facts of a kind or to a degree not otherwise taken into account by the guidelines.

The Court finds that the two subsequent convictions warrant a departure from the presumptive risk level calculated on the Risk Assessment Instrument in that they demonstrate that the defendant poses an increased risk to public safety and that he is likely to commit another offense in the future.

Based upon the foregoing, the defendant is adjudicated to be a Level Three Offender.
Queens County Sex Crime Attorneys and Queens County Rape Attorneys at Stephen Bilkis & Associates are experts in the fields of law mentioned in the case above. If you have questions regarding the issues tackled, please feel free to call our toll free number or visit our place of business. We have offices all around the counties of New York.

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