People v. Curry
2017 NY Slip Op 9184
N.Y. App. Div.2017Background
- Defendant Chealique Curry pleaded guilty to first‑degree sexual abuse for forcibly entering and assaulting a 22‑year‑old former girlfriend in 2011; sentenced to 5 years incarceration plus 5 years postrelease supervision.
- Board prepared New York SORA Risk Assessment Instrument (RAI) in 2015 scoring defendant 95 points (presumptive Level 2 — moderate risk).
- Defense did not contest RAI point calculations but sought a downward departure, relying principally on lower scores from two other actuarial tools: Static‑99R (moderate‑low) and Vermont Assessment (low, but would be moderate‑low if updated for treatment refusal).
- Prosecutor argued New York must rely on the RAI promulgated by the Board and that other instruments do not account for statutory factors (danger/harm) the RAI addresses.
- Supreme Court (SORA hearing court) denied departure and designated defendant Level 2; Appellate Division affirmed.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Curry) | Held |
|---|---|---|---|
| Whether a lower score on an alternate actuarial instrument (Static‑99R/VASOR) can, by itself, justify a downward departure from the RAI presumptive level | RAI is the Board’s instrument reflecting legislative factors; alternate instruments are not substitutes and do not capture danger/harm | A lower Static‑99R/Vermont score shows lower recidivism risk and warrants downward departure | Holding: No. A lower score on an alternate instrument, standing alone, is not a mitigating factor that permits departure |
| Whether defendant met burden to show a mitigating factor not adequately considered by the RAI | RAI already accounts for statutory factors and defendant did not identify unique mitigating factors | Static‑99R/Vermont scores are reliable, widely used, and more accurate than RAI | Holding: Defendant failed to prove any specific mitigating factor by a preponderance; alternate scores did not materially differ from RAI results |
| Whether SORA courts may substitute alternate actuarial tools for the RAI | Courts should use Board’s RAI which assesses both reoffense risk and danger of harm | Courts should consider scientifically validated instruments like Static‑99R | Holding: SORA courts must not replace RAI with instruments that measure only recidivism risk; RAI addresses statutory danger factors |
| Whether other proffered mitigating facts (first sex offense; supervised release) warranted departure | RAI already accounts for prior history and release supervision | These facts justify lower classification | Holding: These factors were already captured by RAI and do not justify departure |
Key Cases Cited
- People v Cook, 29 NY3d 121 (explaining SORA’s goal to protect the public from recidivism and the Board’s role)
- People v Gillotti, 23 NY3d 841 (departure permitted only for mitigating/aggravating factors not otherwise accounted for by guidelines)
- People v Johnson, 11 NY3d 416 (court’s legal question whether a factor is otherwise taken into account)
- People v Wyatt, 89 AD3d 112 (describing RAI structure and two‑step burden for departures)
- People v Rodriguez, 145 AD3d 489 (Static‑99 low score alone insufficient for departure because it inadequately considers harm potential)