People v. Weber
| Docket Number | 50 |
| Decision Date | 15 June 2023 |
| Parties | The People & c., Respondent, v. Christopher J. Weber, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
David R. Juergens, for appellant.
Martin P. McCarthy, II, for respondent.
The Appellate Division reversed a County Court order designating defendant Christopher Weber a level three sex offender based on his risk factor point assessment and remitted the matter for consideration of whether an upward departure was warranted (176 A.D.3d 1631 [4th Dept 2019]). Defendant contends the remittal was impermissible because the People did not request a departure at the initial hearing before County Court. We conclude that the Appellate Division had the authority to remit for consideration of an upward departure on the facts presented here.
In 2014, defendant was charged with committing various crimes against a 10-year-old child and pleaded guilty to sexual abuse in the first degree. Defendant was initially placed on interim probation and promised youthful offender status if he successfully completed one year of probation. Due to defendant's subsequent arrest on other charges stemming from conduct occurring after his plea, defendant's probation was revoked and he was sentenced to a three-year term of imprisonment. In accordance with the Sex Offender Registration Act (Correction Law § 168 et seq. [SORA]), prior to defendant's release, the Board of Examiners of Sex Offenders assessed defendant 110 points on the risk assessment instrument (RAI), including 10 points under risk factor 1 for the use of forcible compulsion. Based on this RAI score, the Board deemed defendant a level three sex offender (that is, at a high risk of reoffense) and did not recommend a downward departure.
At his SORA hearing, defendant disputed the points assessed for several risk factors, including those for factor 1 based on forcible compulsion, and requested a downward departure to risk level two. The People concurred in the Board's point assessment and presumptive level three designation and opposed defendant's departure request. The People made no request in the alternative for an upward departure in the event the court reduced defendant's RAI points. County Court rejected defendant's challenges to the points assessed and adjudicated defendant a level three sexually violent offender. Given the nature of the underlying crime and defendant's record of "serious disciplinary infractions," the court rejected defendant's request for a downward departure from the presumptive level three designation.
Upon defendant's appeal, the Appellate Division reversed and remitted to County Court for further proceedings (176 A.D.3d at 1631). Noting the People's concession that there was no evidence of forcible compulsion, the Appellate Division reduced defendant's RAI score by 10 points, which rendered him a presumptive risk level two offender (see id. at 1632). The Appellate Division concluded that remittal was appropriate because County Court "had no reason to consider" whether clear and convincing evidence supported an upward departure to level three after designating defendant a level three offender based on his RAI score alone (id. [internal quotation marks and citation omitted]).
On remittal, defendant moved to preclude the People from seeking an upward departure, arguing that the remittal was improper. County Court permitted the People to pursue a departure and granted defendant's alternative request to limit the proceeding to the record created during the original hearing. At the close of the second hearing, County Court granted an upward departure from level two and again adjudicated defendant a level three sexually violent offender, reasoning that the RAI did not adequately account for defendant's conduct and arrest while he was on interim probation.
The Appellate Division affirmed, noting that "although the People did not request ... a departure during the original SORA proceeding, there was no reason for them to do so inasmuch as the court had classified defendant as a level three risk based upon the presumptive risk level yielded by the score on his [RAI]" (195 A.D.3d 1544, 1544-1545 [4th Dept 2021]). The Appellate Division also rejected defendant's argument that County Court had erred by upwardly departing under the circumstances of this case. We granted defendant leave to appeal (37 N.Y.3d 913 [2021]).
SORA was enacted to protect the public from the danger of sexual recidivism posed by individuals who commit certain sex offenses (see People v Francis, 30 N.Y.3d 737, 742 [2018]; L 1995, ch 192, § 1). To that end, "SORA contains a detailed system of registration and community notification, with each sex offender's registration and notification obligations emanating from [their] designated risk level within a three-tiered classification scheme" (People v Cook, 29 N.Y.3d 121, 125 [2017]; see Correction Law §§ 168-f; 168-h; 168-l; People v Mingo, 12 N.Y.3d 563, 570-571 [2009]).
As relevant here, to determine an offender's risk level, the Board provides the court with a risk assessment instrument that assigns numerical values to various risk factors in accordance with the SORA Risk Assessment Guidelines resulting in an aggregate score that presumptively places an offender in a particular risk level (see Francis, 30 N.Y.3d at 743-744; Correction Law § 168-l; SORA Risk Assessment Guidelines and Commentary, at 3 [2006]). At a SORA hearing, the offender and the People may each present evidence in support of their positions regarding the RAI point assessment and the offender's presumptive risk level (see Francis, 30 N.Y.3d at 744; Correction Law § 168-n [3]). Each party "may request a departure from the presumptive risk level indicated by the offender's total score" (Francis, 30 N.Y.3d at 744; see Guidelines at 4), and the court must then determine "whether or not to order a departure from the presumptive risk level indicated by the offender's [G]uidelines factor score" using the framework set forth in People v Gillotti (23 N.Y.3d 841, 861 [2014]). If the defendant proves by a preponderance of the evidence mitigating circumstances, or the People prove by clear and convincing evidence aggravating circumstances, "of a kind or to a degree not adequately taken into account by the [G]uidelines," the court must then "determine whether the totality of the circumstances warrants a departure [from the presumptive level] to avoid an over- or under-assessment of the defendant's dangerousness and risk of sexual recidivism" (id. at 861).
Here the People prevailed before the SORA court on their requested allocation of points under the RAI and risk level. When the Appellate Division reversed on the allocation of points and the risk level dropped accordingly, it remitted to allow the SORA court to consider a departure request for the first time. Defendant and our dissenting colleague object contending that because this upward departure request was not made during the original SORA proceeding, the SORA court made no ruling "adverse" to the People, and the Appellate Division therefore could not "review" this "unpreserved" departure question and order remittal upon reversal. But this argument confuses the question of whether remittal was appropriate corrective action with a question of preservation [1]. This is not a case in which a party failed to present an issue to the SORA court and then asked the Appellate Division to nonetheless resolve that same question; the Appellate Division did not rule on the merits of the departure but remitted it for the SORA court to do so in the first instance. [2]
With respect to whether the remittal was permissible, CPLR 5522 enumerates the various dispositions that the Appellate Division may order: it may "reverse, affirm, or modify wholly or in part, any judgment, or order before it, as to any party," and it may "render a final determination or, where necessary or proper, remit to another court for further proceedings" (CPLR 5522 [a]; see Hecht v City of New York, 60 N.Y.2d 57, 64 [1983]). It is true that "neither CPLR 5522 nor any other statutory or constitutional authority permits an appellate court to exercise any general discretionary power to grant relief to a nonappealing party" unless necessary to afford full relief to an appealing party (Hecht, 60 N.Y.2d at 63). But, contrary to our dissenting colleague's conclusion, the Appellate Division's reversal and remittal for consideration of an upward departure did not grant the People affirmative relief from County Court's order (compare Bellevue S. Assoc. v HRH Const Corp., 78 N.Y.2d 282, 299 n 5 [1991] []; Tenavision, Inc. v Neuman, 45 N.Y.2d 145, 151 [1978]), or review any ruling regarding a departure. County Court adjudicated defendant a level three offender based on an erroneous RAI point assessment, and the Appellate Division awarded defendant relief by reversing that order. Its remittal upon that reversal did not "grant greater relief" to the People than County Court's order (Tenavision, Inc., 45 N.Y.2d at 151); it merely provided, at most, an opportunity for the People to maintain the relief they originally requested and obtained before County Court-i.e., a level three designation (see People v Moss, 22 N.Y.3d 1094, 1095 [2014]). The People got no "second bite" at the apple, contrary to what the dissent claims, particularly given that County Court limited the People on remittal to the record of the initial SORA hearing, and the SORA court made an "appropriate designation" of defendant's risk level (Mingo, 12 N.Y.3d at 568 n 2)...
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