People v. Sergio Del Rosario


Issue Presented:

Is the defendant’s “close family relationship with the victim” an aggravating factor not taken into account by the SORA Risk Assessment Instrument (RAI) that can be the basis for an upward departure?



It was not an abuse of discretion for the Appellate Division to sustain an upward departure based on the aggravating factor of the defendant’s “revenge motive.”


Discussion / CAL Observes:

You’re right, the court’s holding does not follow from the issue presented.  Here’s what happened:

Under People v. Gillotti, 23 N.Y.3d 841, 861 (2014), a SORA court must follow a three-step process to depart from the registration level resulting from a registrant’s RAI score.  The court must find 1) that there is an aggravating or mitigating circumstance that is not adequately accounted for by the RAI as a matter of law, 2) that the circumstance is sufficiently proven, and 3) that, under the totality of the circumstances, the RAI score over- or understates the registrant’s risk of recidivism such that a departure is warranted.

AD2 decided this case under the first Gilotti step, finding as a matter of law that the family relationship between the registrant and victim was an aggravating circumstance outside of the RAI, as was the registrant’s motive in raping the victim to exact revenge against the victim’s mother.

The COA accepted this case in order to decide the first question: was the defendant’s family relationship a valid basis for upward departure?  The defense argued that it was not because it was already accounted for in the RAI: Factor 7 assesses points based on the defendant’s relationship with the victim, assessing zero points for a victim who is a non-stranger with whom the registrant did not establish a relationship for the purpose of victimization.  Further, social science research demonstrates that individuals who abuse a family member have lower recidivism rates than those who abuse someone unrelated to them, so this is not an aggravating factor.

The court’s decision, however, entirely omitted a reference to this basis for departure, declining to hold that a family relationship is or is not an aggravating circumstance.  Reading between the lines, it is clear that the court answered the question in the negative but could not bring itself to issue a decision that would benefit sex offenders in any meaningful way.

Instead, the court upheld the upward departure based on the second factor, the “revenge motive,” a circumstance that is unlikely to recur in many cases.

Of note is the standard of review the court employed.  Rather than finding, as AD2 did, that this factor was an aggravating circumstance as a matter of law under Gillotti step 1, the court instead found that the Appellate Division did not abuse its discretion* in upholding an upward departure on those grounds.  Because the only discretionary step of the departure determination is in Gilotti step 3, this means the court essentially skipped issuing any holding under step 1 (though it is implicit).

Finally, the court also rejected the prosecution’s argument that the appeal was rendered moot by the registrant’s deportation, a position that has been consistently rejected by the Appellate Divisions as well.

*The Appellate Division has independent discretion to determine departure applications in SORA cases, meaning it can substitute its own discretion to determine whether a departure is warranted without a finding that the SORA court has abused its discretion.