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Top citers, strongest first. 25 distinct citers.
discussed
Cited as authority (rule)
People v. Czaplicki
Although “utilization of the risk assessment instrument will generally ‘result in the proper classification in most cases so that departures will be the exception not the rule’ ” (People v Guaman, 8 AD3d 545 [2004], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [Nov. 1997]), “[a] departure from the presumptive risk level is warranted where ‘there exists an aggravating or mitigating factor of a kind or to a degree not otherwise taken into account by the guidelines’ ” (People v Inghilleri, 21 AD3d 404, 405-406 [2005], quoting Sex Offender …
discussed
Cited as authority (rule)
People v. Brown
To justify an upward departure from a presumptive risk classification, an aggravating factor must exist which was not otherwise adequately taken into consideration by the risk assessment guidelines, and the court’s finding of such a factor must be supported by clear and convincing evidence (see People v Cruz, 28 AD3d 819, 819 [2006]; People v Kwiatkowski, 24 AD3d 878, 879 [2005]; People v Mount, 17 AD3d 714, 715 [2005]).
discussed
Cited as authority (rule)
People v. Turner
“A departure from the presumptive risk level is warranted where ‘there exists an aggravating or mitigating factor of a kind or to a degree not otherwise taken into account by the guidelines’ ” (People v Inghilleri, 21 AD3d 404, 406 [2005], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997 ed]; People v Mount, 17 AD3d 714, 715 [2005] ; People v Girup, 9 AD3d 913 [2004]; People v Guaman, 8 AD3d 545 [2004]).
discussed
Cited as authority (rule)
People v. Abraham
“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]).
discussed
Cited as authority (rule)
People v. Foley
“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]).
discussed
Cited as authority (rule)
People v. Perkins
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 (see People v Mount, 17 AD3d 714, 715 [2005]).
discussed
Cited as authority (rule)
People v. Joslyn
Under now well-settled principles, “[a] departure from the presumptive risk level [may be] warranted where ‘there exists an aggravating or mitigating factor of a kind, or to a degree, not otherwise adequately taken into account by the guidelines’ ” (People v Guarman, 8 AD3d 545 , 545 [2004], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4, No. 6 [Nov. 1997]; see People v Miranda, 24 AD3d 909, 910 [2005]; People v Kwiatkowski, 24 AD3d 878, 879 [2005]; People v McCormick, 21 AD3d 1221, 1222 [2005]; People v Mount, 17 AD3d 714, 715 [2005]; People v Ma…
discussed
Cited as authority (rule)
People v. Kwiatkowski
An upward departure from the presumptive risk level is appropriate when aggravating or mitigating factors are present which were not otherwise sufficiently taken into consideration by the risk assessment guidelines (see People v Mount, 17 AD3d 714, 715 [2005]).
discussed
Cited as authority (rule)
People v. Miranda
Since remittal is necessary, we note that it is unclear whether County Court’s stated reliance upon defendant’s “criminal history” to justify upward departure duplicated the five points defendant had already been assessed in the criminal history category (“prior history/no sex crimes or felonies”) of the risk assessment instrument (see People v Mount, 17 AD3d 714, 715 [2005]).
discussed
Cited as authority (rule)
People v. Zehner
Although it is undisputed that defendant suffers from adjustment disorder with depression and a secondary diagnosis of schizoid personality disorder, the record is devoid of any evidence that these disorders are causally related to any risk of reoffense, that is, “make[ ] him . . . likely to engage in predatory sexually violent offenses” (Correction Law § 168-Z [5] [a] [I]) or “indicate a risk of recidivism” (Correction Law § 168-Z [5] [e]). * Additionally, since the threats made against the victim had already been taken into account in the risk assessment instrument, which assessed …
discussed
Cited "see"
People v. McElhearn
“An upward departure from the presumptive risk level is appropriate when aggravating . . . factors are present which were not otherwise sufficiently taken into consideration by the risk assessment guidelines” (People v Kwiatkowski, 24 AD3d 878, 879 [2005]; see People v Mount, 17 AD3d 714, 715 [2005]).
discussed
Cited "see"
People v. Hayward
“A[n upward] departure from the presumptive risk level is warranted where ‘there exists an aggravating . . . factor of a kind or to a degree not otherwise taken into account by the (risk assessment] guidelines’ ” (People v Inghilleri, 21 AD3d 404, 406 [2005] [emphasis added], quoting Risk Assessment Guidelines and Commentary, at 4; see Mount, 17 AD3d 714 [2005]; Girup, 9 AD3d at 913 ; Guaman, 8 AD3d 545 [2004]) and, here, there was no evidence of such an aggravating factor (see Mount, 17 AD3d 714 [2005]).
discussed
Cited "see"
People v. Barad
“A departure from the presumptive risk level is warranted where ‘there exists aggravating or mitigating factors of a kind or to a degree not otherwise taken into account by the guidelines’ ” (People v Inghilleri, 21 AD3d 404, 405-406 [2005], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997 ed]; see People v Mount, 17 AD3d 714, 715 [2005]; People v Girup, 9 AD3d 913 [2004]; People v Guarnan, 8 AD3d at 545 ).
discussed
Cited "see"
People v. Waleski
“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” (People v Perkins, 35 AD3d 1167, 1168 [2006]; see People v Mount, 17 AD3d 714, 715 [2005]).
discussed
Cited "see"
People v. Miller
“A departure from the presumptive risk level is warranted where ‘there exists an aggravating or mitigating factor of a kind or to a degree not otherwise taken into account by the guidelines’ ” (People v Inghilleri, 21 AD3d at 405-406 , quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997 ed]; see People v Mount, 17 AD3d 714, 715 [2005]; People v Girup, 9 AD3d at 913 ; People v Guaman, 8 AD3d at 545 ).
discussed
Cited "see"
People v. Taylor
“A departure from the presumptive risk level is warranted where ‘there exists an aggravating or mitigating factor of a kind or to a degree not otherwise taken into account by the guidelines’ ” (People v Inghilleri, 21 AD3d at 406 , quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997 ed]; see People v Mount, 17 AD3d 714, 715 [2005]; People v Girup, 9 AD3d 913 [2004]; People v Guarnan, 8 AD3d 545 [2004]).
discussed
Cited "see"
People v. Mudd
“A departure from the presumptive risk level is warranted where ‘there exists an aggravating or mitigating factor of a kind or to a degree not otherwise taken into account by the guidelines’ ” (People v Inghilleri, 21 AD3d 404, 406 [2005], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary, at 4 [1997 ed]; see People v Mount, 17 AD3d 714, 715 [2005]; People v Girup, 9 AD3d 913, 913 [2004]; People v Gauman, 8 AD3d at 545 ).
discussed
Cited "see"
People v. Cadorette
“A departure from the presumptive risk level is warranted where ‘there exists aggravating or mitigating factors of a kind or to a degree not otherwise taken into account by the guidelines’ ” (People v Inghilleri, 21 AD3d 404, 405-406 [2005], quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997 ed]; see People v Mount, 17 AD3d 714, 715 [2005]; People v Girup, 9 AD3d 913 [2004]; People v Guaman, supra at 545 ).
discussed
Cited "see"
People v. Velez
“A departure from the presumptive risk level is warranted where ‘there exists an aggravating or mitigating factor of a kind or to a degree not otherwise taken into account by the guidelines’ ” (People v Inghilleri, supra at 405-406 , quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997 ed]; see People v Mount, 17 AD3d 714, 715 [2005]; People v Girup, supra; People v Guaman, supra).
discussed
Cited "see"
People v. Cruz
Div. 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]).
discussed
Cited "see"
People v. Jusino
(Commentary at 4; see People v Mount, 17 AD3d 714 [3d Dept 2005]; People v Guaman, 8 AD3d 545 [2d Dept 2004]; Matter of O’ Brien, supra.) This court therefore designates the defendant a level one sex offender.
discussed
Cited "see"
People v. Hines
“A departure from the presumptive risk level is warranted where ‘there exists an aggravating or mitigating factor of a kind or to a degree not otherwise taken into account by the guidelines’ ” (People v Inghilleri, supra at 406 , quoting Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997 ed]; see People v Mount, 17 AD3d 714, 715 [2005]; People v Girup, supra; People v Guaman, supra).
discussed
Cited "see"
People v. Inghilleri
A departure from the presumptive risk level is warranted where “there exists an aggravating or mitigating factor of a kind or to a degree not otherwise taken into account by the guidelines” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [1997 ed]; see People v Mount, 17 AD3d 714 [2005]; People v Girup, supra; People v Guaman, supra).
discussed
Cited "see, e.g."
People v. Garrison
Defendant correctly asserts that the aggravating or mitigating factor relied upon must be one which was not otherwise adequately taken into account by the risk assessment guidelines (see id.; People v Joslyn, 27 AD3d 1033, 1033-1034 [2006]; see also People v Mount, 17 AD3d 714, 715 [2005]).
discussed
Cited "see, e.g."
People v. O'Flaherty
These aggravating factors were not adequately taken into account in the Board’s risk assessment instrument and guidelines, and support the discretionary upward departure by the Board and by Supreme Court, which accepted the Board’s recommendation (see People v Sanford, 16 AD3d 1082 [2005], lv denied 4 NY3d 711 [2005]; People v Roland, 292 AD2d 271 [2002], lv denied 98 NY2d 614 [2002]; compare People v Mount, 17 AD3d 714 [2005]).
The People of the State of New York
v.
Darryl D. Mount
v.
Darryl D. Mount
Appellate Division of the Supreme Court of the State of New York.
Apr 7, 2005.
Cardona.
Cited by 29 opinions | Published
Cardona, P.J.
Appeal from an order of the County Court of Saratoga County (Scarano, Jr., J.), entered March 18, 2004, which classified defendant as a risk level III sex offender pursuant to the Sex Offender Registration Act.
In anticipation of his release after serving a five-year prison sentence for a conviction of sexual abuse in the first degree and assault in the second degree, defendant was evaluated and presumptively classified as a risk level II sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6-C). After a hearing, County Court accepted the recommendation of the Board of Examiners of Sex Offenders that an upward departure to risk level III offender status was warranted and classified defendant as such.
[*715] An upward departure from the presumptive risk level is warranted 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’ ” (Matter of O’Brien v State of N.Y. Div. of Probation & Correctional Servs., 263 AD2d 804, 805-806 [1999], lv denied 94 NY2d 758 [1999] [citation omitted]). Furthermore, such a determination must be “supported by clear and convincing evidence in the record” (People v Bottisti, 285 AD2d 841, 841-842 [2001]; see Correction Law § 168-n [3]). Here, it was determined that an upward departure was indicated due to defendant’s prior conviction of sexual misconduct and his history of alcohol and substance abuse. However, the record reveals that defendant had already been assessed the maximum number of points in those categories on the risk assessment instrument.
Inasmuch as the factors that County Court relied upon to justify the upward departure from the presumptive risk level were adequately taken into account by the risk assessment instrument, under the particular circumstances herein, we conclude that the departure was not supported by clear and convincing evidence (see People v Hoppe, 12 AD3d 792, 793-794 [2004]; People v Mallory, 293 AD2d 881, 882 [2002]; Matter of Vandover v Czajka, 276 AD2d 945, 947 [2000]; cf. People v Guaman, 8 AD3d 545, 545 [2004]).
Mercure, Peters, Spain and Carpinello, JJ., concur. Ordered that the order is reversed, on the law, without costs, and defendant is classified as a risk level II sex offender under the Sex Offender Registration Act.