“Clear and Convincing” Evidence Establishes Defendant was a “Stranger” to 13-year old complainant
Appellate Division affirmed that “clear and convincing” evidence showed that a defendant was a “stranger” to a 13-year old complainant in a defendant’s appeal of a New York Supreme Court Order that designated defendant a level three sex offender pursuant to the Sex Offender Registration Act (SORA).
The Court reasoned that since the defendant and the complainant had never met until shortly before the crime occurred, when the defendant happened to be present at the apartment of the complainant’s friend. Accordingly, the People established, by ‘clear and convincing evidence’ that the defendant was a “stranger” to the complainant within the meaning of risk factor 7 (Guidelines at 12). Thus, the Supreme Court lacked the discretion to downwardly depart from the presumptive risk level, since the defendant failed to identify a mitigating factor not otherwise adequately taken into account by the Guidelines.
People v Sooknanan, 2014 NY Slip Op 04910 [2d. Dept July 2, 2014]