indicated factors in New York

2024"A court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors[,] . . . [the court determines that] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines" ( People v Abraham , 39 AD3d 1208, 1209 [4th Dept 2007] [internal quotation marks omitted]; see generally Gillotti , 23 NY3d at 861 ).

2021It is well settled that "[a] court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors[,] . . . [the court determines that] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines" ( People v Abraham , 39 AD3d 1208, 1209 [4th Dept 2007] [internal quotation marks omitted]; see generally People v Gillotti , 23 NY3d 841, 861 [2014]), and the People bear the burden of establishing such a factor by clear and convincing evidence ( see People v Seabolt

2013“A court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors ...[,] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines” (People v Grady, 81 AD3d 1464, 1464 [2011]; see People v Howe, 49 AD3d 1302, 1302 [2008]).

2013“A court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors ...[,] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines” (People v Grady, 81 AD3d 1464, 1464 [2011]; see People v Howe, 49 AD3d 1302, 1302 [2008]).

2011“A court may make an upward departure from a presumptive risk level when, ‘after consideration of the indicated factors . . .[,] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines’ ” (People v Cruz, 28 AD3d 819, 819 ; see People v May, 77 AD3d 1388 ).

2011“A court may make an upward departure from a presumptive risk level when, ‘after consideration of the indicated factors ...[,] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines’ ” (People v Cruz, 28 AD3d 819, 819 [2006]; see People v May, 77 AD3d 1388 [2010]).

2013“A court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors ...[,] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines” (People v Grady, 81 AD3d 1464, 1464 [2011] [internal quotation marks omitted]; see People v Wheeler, 59 AD3d 1007, 1008 [2009], lv denied 12 NY3d 711 [2009]).

2013“A court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors ...[,] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines” (People v Grady, 81 AD3d 1464, 1464 [2011] [internal quotation marks omitted]; see People v Wheeler, 59 AD3d 1007, 1008 [2009], lv denied 12 NY3d 711 [2009]).

2013“A court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors ...[,] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines” (People v Grady, 81 AD3d 1464, 1464 [2011] [internal quotation marks omitted]; see People v Wheeler, 59 AD3d 1007, 1008 [2009], lv denied 12 NY3d 711 [2009]).

2013“A court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors ...[,] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines” (People v Grady, 81 AD3d 1464, 1464 [2011] [internal quotation marks omitted]; see People v Wheeler, 59 AD3d 1007, 1008 [2009], lv denied 12 NY3d 711 [2009]).

2013“A court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors ...[,] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines” (People v Grady, 81 AD3d 1464, 1464 [2011]; see People v Howe, 49 AD3d 1302, 1302 [2008]).

2013“A court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors ...[,] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines” (People v Grady, 81 AD3d 1464, 1464 [2011]; see People v Howe, 49 AD3d 1302, 1302 [2008]).

2024"A court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors[,] . . . [the court determines that] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines" ( People v Abraham , 39 AD3d 1208, 1209 [4th Dept 2007] [internal quotation marks omitted]; see generally Gillotti , 23 NY3d at 861 ).

2023It is well settled that a SORA "court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors[, the court determines that] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines" ( People v Potts , 179 AD3d 1536, 1536 [4th Dept 2020], lv denied 35 NY3d 908 [2020] [internal quotation marks omitted]; see People v Gillotti , 23 NY3d 841, 861 [2014]).

2017Here, the People established by clear and convincing evidence the existence of numerous aggravating factors not adequately taken into account by the risk assessment guidelines, including defendant’s “constant masturbation,” which was “indicative of hyper-sexuality”; his “self-reported addiction” to child pornography; and the nature of the images, i.e., the sadomasochistic images of child pornography found on his computer (see People v Sczerbaniewicz, 126 AD3d 1348, 1349 [2015]; see also People v Guyette, 140 AD3d 1555, 1556-1557 [2016]; People v Lashway, 66 AD3d 662 , 662-663 [2009]).

2017Here, the People established by clear and convincing evidence the existence of numerous aggravating factors not adequately taken into account by the risk assessment guidelines, including defendant’s “constant masturbation,” which was “indicative of hyper-sexuality”; his “self-reported addiction” to child pornography; and the nature of the images, i.e., the sadomasochistic images of child pornography found on his computer (see People v Sczerbaniewicz, 126 AD3d 1348, 1349 [2015]; see also People v Guyette, 140 AD3d 1555, 1556-1557 [2016]; People v Lashway, 66 AD3d 662 , 662-663 [2009]).

2017Here, the People established by clear and convincing evidence the existence of numerous aggravating factors not adequately taken into account by the risk assessment guidelines, including defendant’s “constant masturbation,” which was “indicative of hyper-sexuality”; his “self-reported addiction” to child pornography; and the nature of the images, i.e., the sadomasochistic images of child pornography found on his computer (see People v Sczerbaniewicz, 126 AD3d 1348, 1349 [2015]; see also People v Guyette, 140 AD3d 1555, 1556-1557 [2016]; People v Lashway, 66 AD3d 662 , 662-663 [2009]).

2017Here, the People established by clear and convincing evidence the existence of numerous aggravating factors not adequately taken into account by the risk assessment guidelines, including defendant’s “constant masturbation,” which was “indicative of hyper-sexuality”; his “self-reported addiction” to child pornography; and the nature of the images, i.e., the sadomasochistic images of child pornography found on his computer (see People v Sczerbaniewicz, 126 AD3d 1348, 1349 [2015]; see also People v Guyette, 140 AD3d 1555, 1556-1557 [2016]; People v Lashway, 66 AD3d 662 , 662-663 [2009]).

2007“A court may make an upward departure from a presumptive risk level when, ‘after consideration of the indicated factors [,] . . . [the court determines that] there exists an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines’ ” (People v Cruz, 28 AD3d 819, 819 [2006]; see Ventura, 24 AD3d 527 [2005]; People v Mount, 17 AD3d 714, 715 [2005]).

2006“A court may make an upward departure from a presumptive risk level when, ‘after consideration of the indicated factors [,] . . . [the court determines that] there exists an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines’ ” (People v Cruz, 28 AD3d 819, 819 [2006]; see People v White, 25 AD3d 677 [2006], lv denied 6 NY3d 715 [2006]; People v Mount, 17 AD3d 714, 715 [2005]).

2012Relying on the Board’s case summary, the court determined that defendant is a level three risk based on defendant’s conviction of “forcibly sexually abusing two women who were strangers to him,” his “diagnosis of a serious mental disorder and [his] history of abuse of marijuana.” “A court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors . . . [,] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines” (People v Hueber, 81 AD3d 1466, 1467 [201

2012Relying on the Board’s case summary, the court determined that defendant is a level three risk based on defendant’s conviction of “forcibly sexually abusing two women who were strangers to him,” his “diagnosis of a serious mental disorder and [his] history of abuse of marijuana.” “A court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors . . . [,] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines” (People v Hueber, 81 AD3d 1466, 1467 [201

2012Relying on the Board’s case summary, the court determined that defendant is a level three risk based on defendant’s conviction of “forcibly sexually abusing two women who were strangers to him,” his “diagnosis of a serious mental disorder and [his] history of abuse of marijuana.” “A court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors . . . [,] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines” (People v Hueber, 81 AD3d 1466, 1467 [201

2012Relying on the Board’s case summary, the court determined that defendant is a level three risk based on defendant’s conviction of “forcibly sexually abusing two women who were strangers to him,” his “diagnosis of a serious mental disorder and [his] history of abuse of marijuana.” “A court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors . . . [,] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines” (People v Hueber, 81 AD3d 1466, 1467 [201

2012Relying on the Board’s case summary, the court determined that defendant is a level three risk based on defendant’s conviction of “forcibly sexually abusing two women who were strangers to him,” his “diagnosis of a serious mental disorder and [his] history of abuse of marijuana.” “A court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors . . . [,] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines” (People v Hueber, 81 AD3d 1466, 1467 [201

2012Relying on the Board’s case summary, the court determined that defendant is a level three risk based on defendant’s conviction of “forcibly sexually abusing two women who were strangers to him,” his “diagnosis of a serious mental disorder and [his] history of abuse of marijuana.” “A court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors . . . [,] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines” (People v Hueber, 81 AD3d 1466, 1467 [201

2010“A court may make an upward departure from a presumptive risk level when, ‘after consideration of the indicated factors ...[,] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines’ ” (People v Cruz, 28 AD3d 819, 819 [2006]; see People v Foley, 35 AD3d 1240 [2006]).

2008“A court may make an upward departure from a presumptive risk level when, ‘after consideration of the indicated factors . . .[,] there exists an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines’ ” (People v Cruz, 28 AD3d 819, 819 [2006]; see People v Foley, 35 AD3d 1240 [2006]).

2011“A court may make an upward departure from a presumptive risk level when, ‘after consideration of the indicated factors . . .[,] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines’ ” (People v Cruz, 28 AD3d 819, 819 ; see People v May, 77 AD3d 1388 ).

2011“A court may make an upward departure from a presumptive risk level when, ‘after consideration of the indicated factors ...[,] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines’ ” (People v Cruz, 28 AD3d 819, 819 [2006]; see People v May, 77 AD3d 1388 [2010]).

2006Div. of Probation & Correctional Servs., 263 AD2d 804, 805-806 [1999], lv denied 94 NY2d 758 [1999] [citation and internal quotation marks omitted]; see People v Mount, 17 AD3d 714, 715 [2005]; People v Madlin, 302 AD2d 751, 752 [2003]).

2005Div. of Probation & Correctional Servs., 263 AD2d 804, 805-806 [1999], lv denied 94 NY2d 758 [1999] [citation omitted]).

2023We conclude that [*2]the People established the existence of such an aggravating factor by clear and convincing evidence and that the upward departure was warranted under the totality of the circumstances ( see generally People v Perez , 158 AD3d 1070 , 1071 [4th Dept 2018], lv denied 31 NY3d 905 [2018] ; People v Calderon , 126 AD3d 1383, 1383-1384 [4th Dept 2015], lv denied 25 NY3d 909 [2015]).

2023It is well settled that a SORA "court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors[, the court determines that] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines" ( People v Potts , 179 AD3d 1536, 1536 [4th Dept 2020], lv denied 35 NY3d 908 [2020] [internal quotation marks omitted]; see People v Gillotti , 23 NY3d 841, 861 [2014]).

2021It is well settled that "[a] court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors[,] . . . [the court determines that] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines" ( People v Abraham , 39 AD3d 1208, 1209 [4th Dept 2007] [internal quotation marks omitted]; see generally People v Gillotti , 23 NY3d 841, 861 [2014]), and the People bear the burden of establishing such a factor by clear and convincing evidence ( see People v Seabolt

2019It is well settled that a SORA "court may make an upward departure from a presumptive risk level when, after consideration of the indicated factors[,] . . . [the court determines that] there exists an aggravating . . . factor of a kind, or to a degree, not otherwise adequately taken into account by the [risk assessment] guidelines" ( People v Abraham , 39 AD3d 1208, 1209 [4th Dept 2007] [internal quotation marks omitted]; see People v Diaz , 100 AD3d 1491 , 1491 [4th Dept 2012], lv denied 20 NY3d 858 [2013]).

2019The "court's discretionary upward departure [must be] based on clear and convincing evidence of aggravating factors" ( People v Sherard , 73 AD3d 537 , 537 [1st Dept 2010], lv denied 15 NY3d 707 [2010]; see People v Tidd , 128 AD3d 1537, 1537 [4th Dept 2015], lv denied 25 NY3d 913 [2015]) and, "[i]n determining whether to depart from a presumptive risk level, the hearing court weighs the aggravating or mitigating factors alleged by the departure-requesting party to assess whether, under the totality of the circumstances, a departure is warranted" ( People v Howard , 27 NY3d 337, 341 [2016]; se

2019The "court's discretionary upward departure [must be] based on clear and convincing evidence of aggravating factors" ( People v Sherard , 73 AD3d 537 , 537 [1st Dept 2010], lv denied 15 NY3d 707 [2010]; see People v Tidd , 128 AD3d 1537, 1537 [4th Dept 2015], lv denied 25 NY3d 913 [2015]) and, "[i]n determining whether to depart from a presumptive risk level, the hearing court weighs the aggravating or mitigating factors alleged by the departure-requesting party to assess whether, under the totality of the circumstances, a departure is warranted" ( People v Howard , 27 NY3d 337, 341 [2016]; se

2019The "court's discretionary upward departure [must be] based on clear and convincing evidence of aggravating factors" ( People v Sherard , 73 AD3d 537 , 537 [1st Dept 2010], lv denied 15 NY3d 707 [2010]; see People v Tidd , 128 AD3d 1537, 1537 [4th Dept 2015], lv denied 25 NY3d 913 [2015]) and, "[i]n determining whether to depart from a presumptive risk level, the hearing court weighs the aggravating or mitigating factors alleged by the departure-requesting party to assess whether, under the totality of the circumstances, a departure is warranted" ( People v Howard , 27 NY3d 337, 341 [2016]; se

2018Here, the People established by clear and convincing evidence the existence of numerous aggravating factors not adequately taken into account by the risk assessment guidelines, including the violent manner in which defendant committed a prior felony sex offense, the level of violence and threats employed during the present case, and the fact that defendant committed the present offense while already a level two sex offender ( see People v Shim , 139 AD3d 68, 76-77 [2d Dept 2016], lv denied 27 NY3d 910 [2016]; People v O'Flaherty , 23 AD3d 237 , 237 [1st Dept 2005], lv denied 6 NY3d 705 [2006])