Issue Presented: Where the Appellate Division reversed points assessed by the SORA court,
reducing the registrant’s presumptive risk level, was remittal to the SORA court for an upward
departure determination permissible despite the prosecution not seeking a departure in the
alternative in the first instance?

Held: Yes, remittal was permissible.

Discussion: In a decision by Judge Halligan, joined by Judges Rivera, Garcia, Singas, and Cannataro
(Judge Troutman took no part), the Court of Appeals held that the Fourth Department’s remittal
of Mr. Weber’s case to the SORA court for consideration of an upward departure was
permissible. By remitting the case, the Appellate Division “did not grant the People affirmative
relief from County Court’s order,” despite the prosecution being the nonappealing party, or run
afoul of CPLR 5501(a)(1). CPLR 5501(a)(1) does not control here because, in remitting the
case, the Appellate Division did not “review an alternative ground for affirmance.” Instead, 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.”

Chief Judge Wilson dissented and framed the issue as one of preservation, or, really, the
lack thereof—“However this idea is dressed up, the fact is that the People did not seek an upward
departure when they could have, on appeal lost the issue they had raised below, and were given a
chance to go back and raise the omitted argument.” To the Chief Judge, the majority’s decision
was “a departure from universally applied civil procedure rules preventing do-overs on the basis
of alternative grounds for relief that could have been asserted in the court of instance[.]” And,
while Chief Judge Wilson explained at length why the majority’s justifications for its decision
were misguided, the majority found none of these “strenuous objections” persuasive. According
to the majority, there is no reason to believe that its decision will “encourage otherwise avoidable
piecemeal litigation or squander judicial resources.” Nor does the decision “portend an avulsive
change in the rules of civil practice” because, according to the majority, SORA cases follow a
unique scheme. Finally, according to the majority, its decision is consistent with its prior
holdings in criminal cases, including People v. Havelka, 45 N.Y.2d 636 (1978), and, to the extent
it is not, that is of no moment because, again, SORA is procedurally unique and accuracy is
paramount.

CAL Observes: Once again, the “special nature” of SORA risk-level proceedings appears to matter only
when reliance on it favors the result preferred by the prosecution. It remains to be seen how
often prosecutors take advantage of this decision and seek remittal where dispositive points
challenges are being appealed. Where intermediate appellate courts grant remittal, litigants
should follow the example of appellant here and seek to restrict the record before the SORA
court to the record made at the initial SORA hearing. While the Court in its decision does say

that fact was necessary to its conclusion that remittal was appropriate, it does cite it as support
for dismissing claims of remittal giving the prosecution a “second bite” at the apple.