In support of this contention, he relied upon certain statements he made to the police at the time of his arrest, a letter he wrote to the Board, a psychologist’s report, and a letter the complainant wrote to the defendant’s attorney. The defendant contended that, after subtracting the 10 points assessed under risk factor 12, the resulting score of 105 was within risk level two; he sought a downward departure from risk level two to risk level one based upon the alleged consensual nature of his relationship with the complainant.
The Supreme Court did not pass upon the merits of the dispute regarding the sufficiency of the evidence in support of the 10 points assessed under risk factor 12, but noted that, even if the 10 points were removed from the RAI, the resulting score of 105 points placed the defendant at risk level two, and the Board was not opposed to a risk level two designation. Accordingly, the Supreme Court designated the defendant a risk level two sex offender and, in effect, denied his application for a downward departure to risk level one.
The criminal defendant appeals contending that the Supreme Court failed to give him the benefit of the Board’s recommendation for a downward departure. He contends that his presumptive risk level after the subtraction of the disputed 10 points is risk level two and, thus, the Board’s recommendation for a downward departure should have been applied to depart downward from level two to level one. In addition, he advances other alleged mitigating factors to support a downward departure to level one, including the fact that he was convicted of an attempt only, the offense was “consensual” and statutory, and the violent felonies in his record did not involve “actual violence,” but were convictions for weapon possession.
At the initial determination proceeding, the district attorney bears the burden of proving the facts supporting the determinations sought by clear and convincing evidence. The Guidelines state that the Board or a court may not depart from the presumptive risk level unless there exists an aggravating or mitigating factor.
The court’s decisions in appeals reviewing orders which grant or deny departures from the presumptive risk level frequently include general reference to the clear and convincing evidence standard, without distinguishing between upward and downward departures. The language in some of the cases goes a step further to suggest that, not only must the ultimate determination be supported by clear and convincing evidence, but also, the proponent of a departure has the burden of adducing clear and convincing evidence of the facts in support of the aggravating or mitigating factor which is the threshold condition to the SORA court’s exercise of discretion.
With respect to upward departures, the threshold condition triggering the court’s exercise of discretion is twofold: (1) as a matter of law, the cited aggravating factor must tend to establish a higher likelihood of reoffense or danger to the community and be of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines, and (2) the People must prove the facts in support of the aggravating factor by clear and convincing evidence. Upon satisfaction of that threshold condition, the SORA court may, in its discretion, choose to upwardly depart or make no change. Where the threshold is not met, however, the SORA court may not upwardly depart and must impose the presumptive risk level. In the latter situation, the SORA court has no authority to exercise its discretion to depart upward because SORA requires the ultimate risk designation to be supported by clear and convincing evidence.
To Be Cont……