People v. Murray

184 A.D.3d 882

124 N.Y.S.3d 234 (Mem)

PEOPLE of State of New York, respondent,

v.Jaheim MURRAY, appellant.

2019–08352

Supreme Court, Appellate Division, Second Department, New York.

Submitted—June 3, 2020

June 24, 2020

Clare J. Degnan, White Plains, N.Y. (Salvatore A. Gaetani of counsel), for appellant.

Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Jordan K. Hummel and William C. Milaccio of counsel), for respondent.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.

DECISION & ORDER

ORDERED that the order is reversed, on the law, without costs or disbursements, and the defendant is designated a level one sex offender.

The defendant was convicted, upon his plea of guilty, of attempted rape in the first degree. After a hearing pursuant to the Sex Offender Registration Act (Correction Law art 6–C; hereinafter SORA), the Supreme Court assessed the defendant a total of 65 points pursuant to the Sex Offender Registration Act: Risk Assessment Guidelines and Commentary (2006) (hereinafter Guidelines), within the range for a presumptive designation as a level one sex offender. The court then granted the People's request for an upward departure and designated the defendant a level two sex offender. The defendant appeals.

The Supreme Court should not have granted the People's request for an upward departure. "A departure from the presumptive risk level is generally the exception, not the rule. Where the People seek an upward departure, they must identify an aggravating factor that tends to establish a higher likelihood of reoffense or danger to the community not adequately taken into account by the Guidelines, and prove the facts in support of the aggravating factor by clear and convincing evidence" ( People v. Pittman, 179 A.D.3d 955, 956, 114 N.Y.S.3d 252 [citation omitted] ). If the People do not satisfy these two requirements, "the court does not have the discretion to depart from the presumptive risk level" ( People v. Mota, 165 A.D.3d 988, 989, 84 N.Y.S.3d 569 ).

Here, the People failed to establish that the defendant's conduct was so brutal, heinous, extreme, or depraved as to amount to an aggravating factor that tends to establish a higher likelihood of reoffense or danger to the community not adequately taken into account by the Guidelines (see e.g. People v. Soevyn, 116 A.D.3d 684, 685, 983 N.Y.S.2d 83 ; People v. Henry, 91 A.D.3d 927, 938 N.Y.S.2d 323 ; People v. Suber, 91 A.D.3d 619, 620, 935...