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Home / Case Digests / Appellate Division, Fourth Dept. / Fourth Department — Due Process: People v. Smith

Fourth Department — Due Process: People v. Smith

Appellate Division, Fourth Department

Due Process

Downward Departure

People v. Smith
KA 12-01762
Appealed from Erie County Court

Background: The defendant was found to be a level three risk under the Sex Offender Registration Act. He contended that he was denied due process because he did not receive timely notification that he could submit relevant information to the Board of Examiners of Sex Offenders regarding his case. He also contended that his educational and rehabilitative efforts, made while he was confined, reduced his likelihood of recidivism. As such, he contended that there was clear and convincing evidence that he should have been entitled to a downward departure from the risk level established by the guidelines.

Ruling: Order was affirmed. The people failed to timely notify defendant that his case was under review by the Board of Examiners of Sex Offenders; however, the people offered an adjournment, which afforded him a meaningful opportunity to submit mitigating evidence. Further, the guidelines used to determine risk level already had accounted for the defendant’s educational and rehabilitative efforts. The defendant, therefore, did not present clear and convincing evidence to justify downward departure from the guidelines.

Jessamine I. Jackson for the defendant; David A. Heraty for the Erie County District Attorney’s Office