Fourth Department — Sex Offender Registration Act: People v. Diaz

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Appellate Division, Fourth Department

Sex Offender Registration Act

Upward Departure

People v. Diaz
KA 11-00996
Appealed from Monroe County Court

Background: County Court found that the defendant was a level three risk pursuant to the Sex Offender Registration Act based upon the Board of Examiners of Sex Offenders’ recommendation for an upward departure due to the defendant’s pattern sexual offenses and diagnosis of schizophrenia. On appeal, the defendant contended that upward departure was an error.

Ruling: Order is modified. A court may make an upward departure from a presumptive risk level when it finds an aggravating factor of a kind not adequately taken into account by the risk assessment guidelines. Here, County Court erred by basing its upward departure on factors already taken into account by the Risk Assessment Instrument, i.e., the defendant’s drug abuse, and his use of forcible compulsion and targeting strangers.
Judge Fahey dissented and voted to affirm. Although County Court relied on factors already taken into consideration by the RAI, County Court also considered a factor not accounted for: the defendant’s mental disorder.

James Eckert for the defendant; Nancy Gilligan for the Monroe County District Attorney’s Office