third step analysis in New York

2024This is a critical error because "[a] trial court that resolves a Batson challenge without proceeding to [the] third step 'falls short of [providing] a meaningful inquiry into the question of discrimination' " ( People v Acevedo , 141 AD3d at 850 [McCarthy, J., concurring], quoting People v Smocum , 99 NY2d at 423 [the third step of the analysis " requires the trial court to make an ultimate determination on the issue of discriminatory intent" (emphasis added)]; see People v Hecker , 15 NY3d at 634-635 ["the trial court must determine whether the proffered reasons are pretextual" (internal quo

2016A trial court that resolves a Batson challenge without proceeding to this third step "falls short of [providing] a meaningful inquiry into the question of discrimination" (People v Smocum, 99 NY2d 418, 423 [2003] [internal quotation marks and citations omitted]).

2023Inasmuch as the court incorrectly determined that defendant failed to identify a mitigating factor not adequately taken into account by the SORA Guidelines, it did not exercise its discretion under the third step of the analysis ( see Edwards , 200 AD3d at 1595-1596 ; see generally Gillotti , 23 NY3d at 861 ).

2023At the third step of the analysis, upon exercising our discretion by weighing the abovementioned mitigating circumstance, which minimizes defendant's current dangerousness and risk of reoffense, against the aggravating circumstances, including the egregious nature of the underlying sex offense committed nearly 30 years ago ( see Wright , 215 AD3d at 1259-1260 ), we conclude that the totality of the circumstances warrants a downward departure to a level two risk because classifying defendant consistent with his presumptive level three risk would result in an overassessment of his dangerousness

2024This is a critical error because "[a] trial court that resolves a Batson challenge without proceeding to [the] third step 'falls short of [providing] a meaningful inquiry into the question of discrimination' " ( People v Acevedo , 141 AD3d at 850 [McCarthy, J., concurring], quoting People v Smocum , 99 NY2d at 423 [the third step of the analysis " requires the trial court to make an ultimate determination on the issue of discriminatory intent" (emphasis added)]; see People v Hecker , 15 NY3d at 634-635 ["the trial court must determine whether the proffered reasons are pretextual" (internal quo

2016The third step of this inquiry is the "key, final protocol," in which the trial court both resolves factual disputes and makes findings of fact and assessments of credibility (People v Payne, 88 NY2d 172, 186 [1996]).

2024We are unable to do so in the first instance since the issue of pretext "is a question of fact, focused on the credibility of the race-neutral reasons" ( People v Smocum , 99 NY2d 422 ; see People v Hecker , 15 NY3d at 656 ; People v Morgan , 75 AD3d 1050, 1052-1053 [4th Dept 2010], lv denied 15 NY3d 894 [2010]).

2024This is a critical error because "[a] trial court that resolves a Batson challenge without proceeding to [the] third step 'falls short of [providing] a meaningful inquiry into the question of discrimination' " ( People v Acevedo , 141 AD3d at 850 [McCarthy, J., concurring], quoting People v Smocum , 99 NY2d at 423 [the third step of the analysis " requires the trial court to make an ultimate determination on the issue of discriminatory intent" (emphasis added)]; see People v Hecker , 15 NY3d at 634-635 ["the trial court must determine whether the proffered reasons are pretextual" (internal quo

2024This is a critical error because "[a] trial court that resolves a Batson challenge without proceeding to [the] third step 'falls short of [providing] a meaningful inquiry into the question of discrimination' " ( People v Acevedo , 141 AD3d at 850 [McCarthy, J., concurring], quoting People v Smocum , 99 NY2d at 423 [the third step of the analysis " requires the trial court to make an ultimate determination on the issue of discriminatory intent" (emphasis added)]; see People v Hecker , 15 NY3d at 634-635 ["the trial court must determine whether the proffered reasons are pretextual" (internal quo

2024This is a critical error because "[a] trial court that resolves a Batson challenge without proceeding to [the] third step 'falls short of [providing] a meaningful inquiry into the question of discrimination' " ( People v Acevedo , 141 AD3d at 850 [McCarthy, J., concurring], quoting People v Smocum , 99 NY2d at 423 [the third step of the analysis " requires the trial court to make an ultimate determination on the issue of discriminatory intent" (emphasis added)]; see People v Hecker , 15 NY3d at 634-635 ["the trial court must determine whether the proffered reasons are pretextual" (internal quo

2024We are unable to do so in the first instance since the issue of pretext "is a question of fact, focused on the credibility of the race-neutral reasons" ( People v Smocum , 99 NY2d 422 ; see People v Hecker , 15 NY3d at 656 ; People v Morgan , 75 AD3d 1050, 1052-1053 [4th Dept 2010], lv denied 15 NY3d 894 [2010]).

2023Where, however, the record is sufficient for us to make our own findings of fact and conclusions of law, we may review a defendant's request for a downward departure instead of remitting ( see People v Cornwell , 213 AD3d 1239 , 1240 [4th Dept 2023]; People v Taylor , 198 AD3d 1369, 1370 [4th Dept 2021], lv denied 38 NY3d 905 [2022]; People v Chrisley , 193 AD3d 1422, 1425 [4th Dept 2021], lv denied 37 NY3d 909 [2021]; cf. Edwards , 200 AD3d at 1596 ).

2023Where, however, the record is sufficient for us to make our own findings of fact and conclusions of law, we may review a defendant's request for a downward departure instead of remitting ( see People v Cornwell , 213 AD3d 1239 , 1240 [4th Dept 2023]; People v Taylor , 198 AD3d 1369, 1370 [4th Dept 2021], lv denied 38 NY3d 905 [2022]; People v Chrisley , 193 AD3d 1422, 1425 [4th Dept 2021], lv denied 37 NY3d 909 [2021]; cf. Edwards , 200 AD3d at 1596 ).

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

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

2013“The third step in the analysis applies where . . . the combined parental income exceeds the applicable statutory limit of $80,000.00 [now $136,000.00]” (see Beroza v Hendler, 109 AD3d 498, 501-502 [2d Dept 2013]).

2013In this situation, “courts [have] the discretion to apply the ‘paragraph (f)’ factors, or to apply the statutory percentages, or to apply both in fixing the basic child support obligation on parental income over $80,000” (Matter of Cassano v Cassano, 85 NY2d at 655 ; see Domestic Relations Law § 240 [1-b] [c]; Matter of Gartmond v Conway, 54 AD3d at 954-955 ; Tryon v Tryon, 37 AD3d 455, 457 [2007]).