aggravating and mitigating factors in New York

2026After weighing the aggravating and mitigating factors, the totality of the circumstances warranted an upward departure to level two to avoid an underassessment of the defendant's dangerousness and risk of sexual recidivism ( see People v Gillotti , 23 NY3d at 861 ).

2026If the first two steps are satisfied, the court must then weigh the aggravating and mitigating factors present in the case to determine whether, under the totality of the circumstances, a downward departure is warranted to avoid an overassessment of the defendant's dangerousness and risk of reoffending ( see 23 NY3d at 861 ).

2026Even assuming, arguendo, that defendant satisfied his burden with respect to "the first two steps of the three-step analysis required in evaluating a request for a downward departure" ( People v Cornwell , 213 AD3d 1239 , 1240 [4th Dept 2023], lv denied 39 NY3d 916 [2023]), we conclude on this record, after applying the third step of weighing the aggravating and mitigating factors, that the totality of the circumstances demonstrates that "defendant's presumptive risk level does not represent an over-assessment of his dangerousness and risk of sexual recidivism" ( People v Burgess , 191 AD3d 12

2024Even assuming, arguendo, that defendant satisfied his burden with respect to "the first two steps of the three-step analysis required in evaluating a request for a downward departure" ( People v Cornwell , 213 AD3d 1239 , 1240 [4th Dept 2023], lv denied 39 NY3d 916 [2023]), we conclude on this record, after applying the third step of weighing the aggravating and mitigating factors, that the totality of the circumstances demonstrates that "defendant's presumptive risk level does not represent an over-assessment of his dangerousness and risk of sexual recidivism" ( People v Burgess , 191 AD3d 12

2025Finally, even assuming, arguendo, that defendant satisfied his burden with respect to the first two steps of the downward departure analysis ( see generally Gillotti , 23 NY3d at 861 ), we conclude on this record, after applying the third step of weighing the aggravating and mitigating factors, that the totality of the circumstances does not warrant a downward departure inasmuch as defendant's presumptive risk level does not represent an over-assessment of his dangerousness and risk of sexual recidivism ( see People v Wolcott , 232 AD3d 1321 , 1322-1323 [4th Dept 2024]; People v Pope , 229 AD3

2023To the contrary, we conclude that, based on the number of defendant's charged and "uncharged sexual crimes, the facts of which were proved by clear and convincing evidence and not fully accounted for in the RAI, the SORA court did not abuse its discretion when it declined to downwardly depart from the presumptive risk level three" ( People v Sincerbeaux , 27 NY3d 683, 691 [2016]).

2024People v Burgess , 191 AD3d 1256 , 1257 [4th Dept 2021]; cf. People v Harripersaud , 198 AD3d 542 , 542 [1st Dept 2021], lv denied 38 NY3d 902 [2022]; People v Palmer , 166 AD3d 536 , 537 [1st Dept 2018], lv denied 32 NY3d 919 [2019]; see generally People v Gillotti , 23 NY3d 841, 861 [2014]), we conclude, after applying the third step of weighing the aggravating and mitigating factors, that the totality of the circumstances does not warrant a downward departure to level two ( see People v Scott , 186 AD3d 1052 , 1054-1055 [4th Dept 2020], lv denied 36 NY3d 901 [2020]; see also People v Gillot

2023People v Burgess , 191 AD3d 1256, 1257 [4th Dept 2021]; cf. People v Harripersaud , 198 AD3d 542, 542 [1st Dept 2021], lv denied 38 NY3d 902 [2022]; People v Palmer , 166 AD3d 536 , 537 [1st Dept 2018], lv denied 32 NY3d 919 [2019]; see generally Gillotti , 23 NY3d at 861 ), we conclude that, after applying the third step of weighing the aggravating and mitigating factors, the totality of the circumstances does not warrant a downward departure to level two ( see Scott , 186 AD3d at 1054 ; see also People v Gillotti , 119 AD3d 1390, 1391 [4th Dept 2014]; cf. generally People v Weatherley , 41 A

2024People v Burgess , 191 AD3d 1256 , 1257 [4th Dept 2021]; cf. People v Harripersaud , 198 AD3d 542 , 542 [1st Dept 2021], lv denied 38 NY3d 902 [2022]; People v Palmer , 166 AD3d 536 , 537 [1st Dept 2018], lv denied 32 NY3d 919 [2019]; see generally People v Gillotti , 23 NY3d 841, 861 [2014]), we conclude, after applying the third step of weighing the aggravating and mitigating factors, that the totality of the circumstances does not warrant a downward departure to level two ( see People v Scott , 186 AD3d 1052 , 1054-1055 [4th Dept 2020], lv denied 36 NY3d 901 [2020]; see also People v Gillot

2023People v Burgess , 191 AD3d 1256, 1257 [4th Dept 2021]; cf. People v Harripersaud , 198 AD3d 542, 542 [1st Dept 2021], lv denied 38 NY3d 902 [2022]; People v Palmer , 166 AD3d 536 , 537 [1st Dept 2018], lv denied 32 NY3d 919 [2019]; see generally Gillotti , 23 NY3d at 861 ), we conclude that, after applying the third step of weighing the aggravating and mitigating factors, the totality of the circumstances does not warrant a downward departure to level two ( see Scott , 186 AD3d at 1054 ; see also People v Gillotti , 119 AD3d 1390, 1391 [4th Dept 2014]; cf. generally People v Weatherley , 41 A

2023If the defendant meets this burden of proof, the court must then “weigh[] the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over . . . assessment of the defendant’s dangerousness and risk of sexual recidivism” (Gillotti, 23 NY3d at 861 ; see People v Knox, 12 NY3d 60, 70 [2009]).

2014Thus, at the third step, the court must exercise its discretion by weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over- or under-assessment of the defendant’s dangerousness and risk of sexual recidivism (see People v Knox, 12 NY3d 60, 70 [2009]; Johnson, 11 NY3d at 421 ).

2023People v Burgess , 191 AD3d 1256, 1257 [4th Dept 2021]; cf. People v Harripersaud , 198 AD3d 542, 542 [1st Dept 2021], lv denied 38 NY3d 902 [2022]; People v Palmer , 166 AD3d 536 , 537 [1st Dept 2018], lv denied 32 NY3d 919 [2019]; see generally Gillotti , 23 NY3d at 861 ), we conclude that, after applying the third step of weighing the aggravating and mitigating factors, the totality of the circumstances does not warrant a downward departure to level two ( see Scott , 186 AD3d at 1054 ; see also People v Gillotti , 119 AD3d 1390, 1391 [4th Dept 2014]; cf. generally People v Weatherley , 41 A

2019Applying the proper standard, and even assuming, arguendo, that defendant satisfied his burden at the first and second steps of the downward departure analysis (see generally Gillotti, 23 NY3d at 861 ), at the third step of that analysis we have "weigh[ed] the aggravating and mitigating factors [and] determin[ed that] the totality of the circumstances" do not warrant a downward departure to level one ( id. ; see People v Green, 137 AD3d 498, 498 [1st Dept 2016]; People v Belile, 108 AD3d 890 , 891 [3d Dept 2013], lv denied 22 NY3d 853 [2013]; cf. People v Weatherley, 41 AD3d 1238, 1238-1239 [4

2020Finally, if a defendant meets the first two prongs, a court can permit a downward departure as a matter of discretion "by weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over- or under-assessment of the defendant's dangerousness and risk of sexual recidivism"( id. at 861 ; see also People v Mirabel , 187 AD3d 514 [1st Dept 2020]; People v Anthony P. , 187 AD3d 479 [1st Dept 2020]; People v Aleman , 187 AD3d 482 [1st Dept 2020]; People v Andrew A. , 187 AD3d 445 [1st Dept 2020]).

2020Finally, if a defendant meets the first two prongs, a court can permit a downward departure as a matter of discretion "by weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over- or under-assessment of the defendant's dangerousness and risk of sexual recidivism"( id. at 861 ; see also People v Mirabel , 187 AD3d 514 [1st Dept 2020]; People v Anthony P. , 187 AD3d 479 [1st Dept 2020]; People v Aleman , 187 AD3d 482 [1st Dept 2020]; People v Andrew A. , 187 AD3d 445 [1st Dept 2020]).

2016Here, the defendant’s remorse and acceptance of responsibility were circumstances that were adequately taken into account under the SORA guidelines {see SORA: Risk Assessment Guidelines and Commentary at 15; People v Torres, 124 AD3d 744, 745-746 [2015]).

2015Here, as to the first order, the mitigating circumstances identified by the defendant were either adequately taken into account by the guidelines (see People v Torres, 124 AD3d 744, 745 [2015]; SORA: Risk Assessment Guidelines and Commentary at 13), or were not proved by a preponderance of the evidence (see People v Jamison, 127 AD3d 947 [2015]; People v Collick, 127 AD3d 830 [2015]; cf. People v Modica, 80 AD3d 590, 592 [2011]).

2023The People must prove the facts in support of the aggravating factor by clear and convincing evidence, and once this burden is satisfied, "the court must exercise its discretion by weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an . . . under-assessment of the defendant's dangerousness and risk of sexual recidivism" ( People v Gillotti , 23 NY3d at 861 ; see People v Wilkerson , 214 AD3d at 684; People v DeDona , 102 AD3d at 68 ; People v Wyatt , 89 AD3d at 123 ).

2019Third, "the court must exercise its discretion by weighing the aggravating and mitigating factors to determine whether the totality of the circumstances warrants a departure to avoid an over- or under-assessment of the defendant's dangerousness and risk of sexual recidivism" ( People v Gillotti , 23 NY3d at 861 ; see People v Wyatt , 89 AD3d at 128 ).

2024People v Burgess , 191 AD3d 1256 , 1257 [4th Dept 2021]; cf. People v Harripersaud , 198 AD3d 542 , 542 [1st Dept 2021], lv denied 38 NY3d 902 [2022]; People v Palmer , 166 AD3d 536 , 537 [1st Dept 2018], lv denied 32 NY3d 919 [2019]; see generally People v Gillotti , 23 NY3d 841, 861 [2014]), we conclude, after applying the third step of weighing the aggravating and mitigating factors, that the totality of the circumstances does not warrant a downward departure to level two ( see People v Scott , 186 AD3d 1052 , 1054-1055 [4th Dept 2020], lv denied 36 NY3d 901 [2020]; see also People v Gillot

2023People v Burgess , 191 AD3d 1256, 1257 [4th Dept 2021]; cf. People v Harripersaud , 198 AD3d 542, 542 [1st Dept 2021], lv denied 38 NY3d 902 [2022]; People v Palmer , 166 AD3d 536 , 537 [1st Dept 2018], lv denied 32 NY3d 919 [2019]; see generally Gillotti , 23 NY3d at 861 ), we conclude that, after applying the third step of weighing the aggravating and mitigating factors, the totality of the circumstances does not warrant a downward departure to level two ( see Scott , 186 AD3d at 1054 ; see also People v Gillotti , 119 AD3d 1390, 1391 [4th Dept 2014]; cf. generally People v Weatherley , 41 A

2026Accordingly, based on the aggravating and mitigating factors presented, and in consideration of all the facts and circumstances, we conclude that a censure is appropriate ( see Matter of Patel , 43 AD3d at 550 ).

2026Accordingly, based on the aggravating and mitigating factors presented, and in consideration of all the facts and circumstances, we conclude that a censure is appropriate ( see Matter of Patel , 43 AD3d at 550).

2025Inasmuch as the failure of the court to set forth the findings of fact and conclusions of law on which it based its decision "preclud[es] meaningful appellate review of the propriety of the court's risk level assessment" ( Flax , 71 AD3d at 1452 [internal quotation marks omitted]), and given the court's improper assessment of points under risk factor 14, we reverse the order, vacate defendant's risk level determination, and remit the matter to Supreme Court for a new risk level determination, and a new hearing if necessary, in compliance with Correction Law § 168-n (3).

2025Inasmuch as the failure of the court to set forth the findings of fact and conclusions of law on which it based its decision "preclud[es] meaningful appellate review of the propriety of the court's risk level assessment" ( Flax , 71 AD3d at 1452 [internal quotation marks omitted]), and given the court's improper assessment of points under risk factor 14, we reverse the order, vacate defendant's risk level determination, and remit the matter to Supreme Court for a new risk level determination, and a new hearing if necessary, in compliance with Correction Law § 168-n (3).

2025At the outset, "we are not obliged to impose the same sanction that was imposed by the foreign tribunal" ( Matter of Radshaw , 213 AD3d 1193, 1194 [3d Dept 2023] [internal quotation marks and citation omitted]).

2025Defendant's subsequent criminal history indicates that he "poses an increased risk to public safety" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 14 [2006]; see generally People v Milks , 28 AD3d 1163, 1164 [4th Dept 2006]), and we cannot conclude that the court, in weighing the aggravating and mitigating factors, abused its discretion in granting a two-level upward departure ( see generally People v Gillotti , 23 NY3d 841, 861 [2014]).

2025Defendant's subsequent criminal history indicates that he "poses an increased risk to public safety" (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 14 [2006]; see generally People v Milks , 28 AD3d 1163, 1164 [4th Dept 2006]), and we cannot conclude that the court, in weighing the aggravating and mitigating factors, abused its discretion in granting a two-level upward departure ( see generally People v Gillotti , 23 NY3d 841, 861 [2014]).

2025Accordingly, in consideration of the various aggravating and mitigating factors presented, and in an effort to protect the public, maintain the honor and integrity of the profession and deter others from engaging in similar misconduct, we suspend respondent for a period of 60 days ( see Matter of Tan , 149 AD3d 1344, 1345 [3d Dept 2017]).

2025Accordingly, in consideration of the various aggravating and mitigating factors presented, and in an effort to protect the public, maintain the honor and integrity of the profession and deter others from engaging in similar misconduct, we suspend respondent for a period of 60 days ( see Matter of Tan , 149 AD3d 1344 , 1345 [3d Dept 2017]).