Fourth Department – Sex Offender Registration Act: People v. Catalano

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New York State Supreme Court, Appellate Division, Fourth Judicial Department

Sex Offender Registration Act

Downward departure – lack of consent and points assessment

People v. Catalano

KA 18-01551

Appealed from Monroe County Court

Background: The defendant appealed from an order determining him to be a level two risk pursuant to the Sex Offender Registration Act. He argues that he was entitled to a downward departure from his presumptive risk level.

Ruling: The Appellate Division affirmed. The court held that a downward departure was not warranted given the circumstances surrounding the sexual assault, the age disparity between the 25-year-old defendant and the two 15-year-old victims, the absence of any evidence that the victims willingly engaged in sexual activity with him and that the fact that the defendant is only 5 points below the threshold for a level three presumptive risk.

Timothy S. Davis, of the public defender’s office, for the defendant-appellant; Nancy Gilligan, of the district attorney’s office, for the respondent.