Court of Appeals – Sex Offender Registration Act: People v. Townsend

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New York State Court of Appeals

Sex Offender Registration Act — Atypical criminal history — Upward departure

People v. Townsend

No. 48

Memorandum

Background: The defendant appealed from a determination that he was a level two risk pursuant to the Sex Offender Registration Act arguing that his prior criminal history should not have been the basis of an upward departure.

Ruling: The Court of Appeals held that an offender’s prior criminal history can warrant an upward SORA departure in an appropriate case. Although an offender’s criminal history is plainly a factor contemplated by the Risk Assessment Guidelines under factors 9 and 10, an offender’s atypical prior criminal history may be an aggravating factor for which the Guidelines inadequately account. The defendant had three sex offenses and a violent felony which support the conclusion of an atypical history, which included two prior convictions of forcible touching. Eight months after being released he committed yet another forcible touching offense.

Nkechi N. Erondu for the appellant; Anna Notchick for the respondent.

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