AD4: upward departure in SORA classification cannot be based on factors already counted in RAI

People v Perkins, 2006 NY Slip Op 09748 [available here]

People v Foley (no, not THAT Foley), 2006 NY Slip Op 09853 [available here]

In two cases handed down last term, the Fourth Department held that an upward departure in a SORA classification proceeding cannot be based on factors taken into consideration elsewhere in the Risk Assessment Instrument ("RAI"). Basically, a sex offender is assessed points based on different factors that could indicated a risk of reoffending--if an offender's victims are children under a certain age, he or she gets assessed points; if an offender used force, he or she gets points, etc. One of the "risk factors" contained in the RAI is the offender's use of drugs or alcohol (i.e. he or she gets assessed points if there is a history of drug or alcohol abuse). Once all of the factors in the RAI are considered, the points are tallied up, and the total points dictate what category the offender falls into. In some cases, the court can impose an "upward departure" if the offender's RAI score is low but there is nevertheless a high risk of reoffense based on factors the RAI does not consider.

The court's discretion to impose an "upward departure" is not unlimited, however. In Perkins, the assessing court imposed on upward departure from a level two (the offender level indicated by the point total from the RAI) to a level three based on the offender's history of mental health issues and drug use. The Fourth Department found this to be error--"The court's reliance on defendant's history of drug and alcohol abuse to justify the upward departure from the presumptive risk level was improper because defendant's history of substance abuse was already taken into account when defendant was assessed maximum points for that history in the risk assessment instrument." (Perkins, 2006 NY Slip Op 09748.)

The Court reached a similar conclusion in People v Foley, although the Court did not indicate what specific factors were used for the upward departure that had already been counted in the RAI. "Here, the only factors cited by the Board and the court in justifying a departure from the presumptive risk level are factors for which defendant was assessed points in the RAI." (Foley, 2006 NY Slip Op 09853.)