People of State of New York v Differson Legrand
Attorneys and Parties
Brief Summary
Sex offender risk level classification under the Sex Offender Registration Act (SORA) (Correction Law art 6-C) [sex offender registration and risk level classification] and standards for upward/downward departures, including due process notice under Correction Law § 168-n(3) [requires the district attorney to give at least 10 days' prior notice and reasons when seeking a determination that differs from the Board's recommendation].
After a SORA hearing, the Supreme Court, Queens County, assessed 125 points on the risk assessment instrument (RAI), denied a downward departure, and designated Legrand a level three sex offender.
The level three designation based on 125 points; the assessments under risk factor 4 (continuing course of sexual misconduct) and risk factor 12 (failure to accept responsibility) were vacated, reducing the total to 95 points (presumptive level two). The matter was remitted for a new hearing limited to whether an upward departure from level two is warranted.
The record showed only one instance of direct sexual contact, and the People did not establish by clear and convincing evidence accessory intent to support a continuing course (risk factor 4). The court also could not assess points for failure to accept responsibility (risk factor 12) while the defendant’s direct appeal was pending and could result in a new trial. Points under risk factors 3 (multiple victims) and 7 (relationship established for victimization) were properly assessed. The People’s notice under Correction Law § 168-n(3) was adequate and did not deprive due process.
Background
Legrand was convicted by a jury of, among other offenses, rape in the second degree and promoting prostitution. The Board of Examiners of Sex Offenders recommended level two in June 2022. At an August 8, 2022 SORA hearing, the People sought assessment of additional points and an upward departure. The court denied Legrand’s bid to preclude the People’s application, assessed 125 points on the RAI, and designated him level three.
Lower Court Decision
The Supreme Court, Queens County (Justice Stephanie Zaro), found the People’s notice sufficient, assessed 125 points including under risk factors 3, 4, 7, and 12, denied a downward departure, and designated Legrand a level three sex offender.
Appellate Division Reversal
The Appellate Division reversed, holding that risk factor 4 (20 points) and risk factor 12 (10 points) were improperly assessed. Subtracting 30 points reduced the total to 95, yielding a presumptive level two. The court affirmed points under risk factors 3 and 7 and rejected Legrand’s due process challenge to the People’s notice under Correction Law § 168-n(3). It remitted to the Supreme Court, Kings County, for a new hearing and determination on whether an upward departure from the presumptive level two is warranted.
Legal Significance
Clarifies application of SORA risk factors: a continuing course requires more than a single act or clear accessory intent; denial of responsibility should not be penalized while a direct appeal that could yield a new trial is pending. Reaffirms the People’s burden of clear and convincing evidence for point assessments and the sufficiency of timely notice under Correction Law § 168-n(3).
SORA point assessments must be supported by clear and convincing evidence; courts should not assess risk factor 4 absent multiple acts or proven accessory intent, nor risk factor 12 when a direct appeal is pending. Proper notice under § 168-n(3) satisfies due process, and appellate courts may remit solely for consideration of an upward departure from a corrected presumptive level.