PEOPLE v. WASHINGTON (2026)

Order, Supreme Court, New York County (Abraham Clott, J.), entered on or about February 27, 2023, which adjudicated defendant a level two sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C), unanimously reversed, on the law, without costs, and the adjudication vacated and replaced with an adjudication of defendant as a level one sex offender.

Defendant's rights were not violated when the court, upon stating that it would consider, sua sponte, an upward departure from the recommendation of the Board and the People, adjourned the hearing to afford him a meaningful opportunity to respond (cf.  People v. Segura, 136 A.D.3d 496, 497, 26 N.Y.S.3d 7 [1st Dept. 2016], citing People v. Wheeler, 59 A.D.3d 1007, 872 N.Y.S.2d 360 [4th Dept. 2009], lv denied 12 N.Y.3d 711, 2009 WL 1309378 [2009]).

However, the record does not support an upward departure, as it does not provide clear and convincing evidence of an aggravating factor that was not adequately taken into account by the SORA Guidelines.  While case law provides that the heinous and violent nature of an underlying sex offense may justify an upward departure, where the “extreme egregiousness of defendant's conduct” is not adequately taken into account by the SORA Guidelines (People v. Fultz, 122 A.D.3d 458, 459, 994 N.Y.S.2d 615 [1st Dept. 2014] [internal quotation marks and citations omitted], lv denied 24 N.Y.3d 914, 2015 WL 175209 [2015];  People v. Sandy, 173 A.D.3d 915, 916, 100 N.Y.S.3d 346 [2d Dept. 2019], lv denied 34 N.Y.3d 903, 2019 WL 5559053 [2019]), the record here does not support such a finding (see e.g. People v. Lyons, 72 A.D.3d 776, 777, 900 N.Y.S.2d 97 [2d Dept. 2010]).  As the People concede, the court did not otherwise base the upward departure on an appropriate aggravating factor.