People v. Legrand (2026): Limits on SORA Risk-Factor Scoring for “Continuing Course,” “Failure to Accept Responsibility” During Direct Appeal, and Accessorial Theories

1. Introduction

People v. Legrand addresses how New York courts must score and review Sex Offender Registration Act (SORA) risk factors and when a SORA court may rely on certain kinds of proof. The defendant, Differson Legrand, was convicted after a jury trial of, among other offenses, rape in the second degree. The Board of Examiners of Sex Offenders recommended a presumptive level two designation, but at the SORA hearing the Supreme Court assessed points that yielded a level three designation.

On appeal, the principal issues were: (i) whether the People’s application (including points sought and an upward departure request) complied with SORA due-process and notice requirements; (ii) whether particular risk-factor point assessments were supported by clear and convincing evidence; (iii) whether the defendant established a basis for a downward departure; and (iv) the proper remedy where point scoring is reduced to level two and the SORA court did not reach the People’s upward-departure request as an alternative ground.

2. Summary of the Opinion

• Due process/notice: The court held the defendant did not show a due-process violation from the People’s application seeking additional points and an upward departure; there was no demonstrated delay in release or deprivation of notice/opportunity to be heard.
• Upheld scoring: The court upheld points under risk factor 3 (number of victims) based on convictions relating to promoting prostitution, and upheld points under risk factor 7 (relationship with victim) where evidence supported a “stranger/relationship established for victimization” theory.
• Improper scoring: The court held the Supreme Court should not have assessed:
  • 20 points under risk factor 4 (continuing course of sexual misconduct) where the record showed only one instance of direct sexual contact.
  • 10 points under risk factor 12 (failure to accept responsibility) because the defendant denied responsibility while a direct appeal was pending raising issues that could result in a new trial.
• Presumptive level: With 30 points removed (from 125 down to 95), the defendant became a presumptive level two registrant.
• Departures: A downward departure to level one was denied; the matter was remitted for a new hearing on the People’s upward-departure request because the SORA court had not ruled on it as an alternative to level three.

3. Analysis

3.1 Precedents Cited

A. Due process and statutory notice

The decision begins by reaffirming the due-process floor for SORA classification: registrants are entitled to notice and an opportunity to be heard before risk-level determination. The court quoted People v Cutting, which itself quoted People v Worley for this proposition. It then applied Correction Law § 168-n(3), requiring that when the district attorney seeks a result different from the Board’s recommendation, the People must provide a statement at least ten days before the proceeding explaining what they seek and why.

• People v Cutting / People v Worley: reinforced that SORA proceedings must satisfy due process (notice + opportunity to be heard).
• People v Cruz (cited by “cf.”): served as a comparator on timing/notice issues; here, the defendant did not claim late service and did not show prejudice.

The court’s approach reflects a pragmatic due-process inquiry: even where a defendant challenges the People’s attempt to seek additional points or an upward departure, relief (such as preclusion) requires a showing that the statutory notice failure occurred or that the manner/timing of service caused prejudice—such as delaying release or depriving meaningful ability to respond.

B. Burdens of proof and acceptable evidence at SORA hearings

The court relied on People v Brown for the People’s burden: the facts supporting the determinations sought must be proven by clear and convincing evidence. It cited People v Crandall to underscore that SORA courts may rely on a wide range of sources, including reliable hearsay (e.g., victim statements, supervision reports, and Board case summaries).

• People v Brown: clear-and-convincing evidentiary burden for point assessments and related determinations.
• People v Crandall: breadth of permissible proof, including reliable hearsay.

C. Presumptive nature of the RAI and departure framework

The court invoked People v Davis for the principle that the Guidelines and RAI score are presumptive, not conclusive. That presumption authorizes a SORA court, in an appropriate case, to depart from the numerical score when the RAI factors do not yield an appropriate designation.

D. Specific risk factors: victims, relationship, course of conduct, and acceptance of responsibility

On risk factor 3 (number of victims), the court held the Supreme Court properly assessed points based on convictions of promoting prostitution in the second and third degree, relying on People v Izzo and People v DeDona. It quoted People v Izzo for a key interpretive point: because the Guidelines use the broader term “sexual conduct,” the conduct need not amount to a SORA-level offense to be counted under the factor.

On risk factor 7 (relationship with victim), the court cited People v Sooknanan and found the evidence supported the “stranger” or “relationship established for the purpose of victimizing” classification, based on the complainant’s testimony.

The court then corrected two scoring errors:

• Risk factor 4 (continuing course of sexual misconduct): the court held 20 points were improper because the record showed only one instance of direct sexual contact (with a reference to Penal Law § 130.00[3]).
• Accessorial-intent limits (linked to the prostitution-related theory): the court stated the People failed to show by clear and convincing evidence that, under accessorial liability, the defendant shared the intent of the complainant’s clients in engaging in sexual contact with her, citing People v Canady. This reflects the principle that accessory liability turns on shared mental state/intent, not mere association with the underlying conduct.
• Risk factor 12 (failure to accept responsibility): the court held 10 points were improper because the defendant’s denial occurred while he was pursuing a direct appeal raising issues that might yield a new trial, citing People v Fews and People v Britton (and noting People v Britton was “affd 31 NY3d 1019”).

E. Downward departures: the structured test

The court applied the established two-step and then discretionary weighing approach to downward departures, drawing on: People v Fernandez (quoting People v Wyatt), and People v Gillotti, with the final weighing step reflected in People v Tirado.

• People v Fernandez / People v Wyatt: defendant must identify a mitigating factor not adequately accounted for by the Guidelines and prove it by a preponderance.
• People v Gillotti: once the threshold is met, the court exercises discretion to avoid overassessment of dangerousness/recidivism risk.
• People v Tirado: emphasizes weighing under the totality of circumstances.

The court then held that the defendant’s proposed mitigators were either already accounted for by the Guidelines or not shown to reduce risk: it relied on People v Oyola and People v Cousin (lack of record and re-entry plan adequately captured), People v Thorpe (family support not shown, on this record, to reduce risk), and again People v Oyola (military service not shown to lower risk).

F. Remedy: remittal for upward departure

Because the Supreme Court did not decide whether an upward departure would be warranted if the defendant were not otherwise level three on points, the Appellate Division remitted for a new hearing and determination on upward departure, citing People v King. This underscores that departure analysis is not automatic: it requires findings and a record tailored to the departure request.

3.2 Legal Reasoning

The opinion’s logic proceeds in a familiar SORA sequence:

1. Procedural fairness first: confirm notice/due-process compliance under Correction Law § 168-n(3) and constitutional standards (as framed by People v Cutting and People v Worley).
2. Score the RAI on reliable proof: require clear and convincing evidence (People v Brown) using permissible sources including reliable hearsay (People v Crandall).
3. Apply Guidelines interpretations: for example, risk factor 3’s “sexual conduct” is not limited to SORA-level offenses (People v Izzo), which allowed prostitution-related convictions to inform victim-count scoring.
4. Correct over-scoring: the court insisted risk factor 4 requires more than a single instance of direct sexual contact, and it rejected risk factor 12 points where denial of responsibility occurred while direct appellate review was ongoing and potentially case-dispositive.
5. Determine presumptive level, then address departures: after subtracting erroneously assessed points, the presumptive level became two; downward departure was rejected under the structured test, and the case was remitted for a focused upward-departure inquiry because it had not been ruled upon.

3.3 Impact

1) Guardrails on “continuing course” scoring: The decision reinforces that risk factor 4 cannot be assessed merely from a narrative of broader misconduct when the evidence shows only one instance of direct sexual contact with the complainant. Practically, prosecutors will need either proof of multiple direct sexual-contact events or a clearly applicable theory grounded in the Guidelines as interpreted by appellate precedent.

2) Protecting appellate rights in risk factor 12: By disallowing “failure to accept responsibility” points when a defendant denies guilt while pursuing a direct appeal with potentially meritorious issues, the opinion reduces pressure to concede guilt to avoid harsher SORA classification. It signals that the SORA process should not penalize a defendant for exercising appellate rights where the conviction’s validity remains under review.

3) Clarifying limits on accessorial theories in SORA scoring: The citation to People v Canady highlights that accessorial liability—especially when used to extend sexual-contact-based consequences—requires proof of shared intent. This can constrain attempts to “bootstrap” sexual-contact inferences from surrounding criminality without clear-and-convincing evidence of the defendant’s mental state aligning with the principal actors.

4) Procedural consequence—remittal for upward departure: When point scoring drops below level three and the SORA court did not decide an alternative upward departure, appellate courts may remit for a new hearing on that discrete issue. This encourages trial courts to make explicit, conditional findings on departure requests to avoid remittal.

4. Complex Concepts Simplified

• SORA / RAI / Guidelines: SORA requires certain convicted individuals to register. The Risk Assessment Instrument (RAI) assigns points under standardized “risk factors” from the Board’s Guidelines; the total yields a presumptive level (1, 2, or 3).
• “Presumptive” risk level: The level from the score is a starting point, not an absolute rule; a court may depart up or down if the Guidelines do not adequately capture risk in the particular case.
• Clear and convincing evidence: A heightened civil standard requiring a high degree of certainty—more than “preponderance,” less than “beyond a reasonable doubt.”
• Reliable hearsay in SORA: Unlike a criminal trial, SORA hearings may use reliable hearsay (e.g., Board summaries, victim statements), but the evidence must still be trustworthy and meet the People’s burden.
• Accessorial liability (accomplice liability): Holding a person responsible for another’s conduct requires proof the person intentionally aided the crime and shared the required intent; it is not established merely by association or presence.
• Risk factor 12 (acceptance of responsibility): Points may be added when a defendant refuses to accept responsibility, but People v Legrand underscores that denial while a direct appeal is pending (with potentially outcome-changing issues) should not, on this record, support that enhancement.
• Downward vs. upward departure: A downward departure reduces the level below the presumptive score; an upward departure increases it. Departures require legally cognizable factors and fact-finding, not mere disagreement with the score.

5. Conclusion

People v. Legrand materially tightens SORA point-assessment discipline in three ways: it limits risk factor 4 to cases supported by evidence of more than a single instance of direct sexual contact; it restricts risk factor 12 where a defendant’s denial occurs during a pending direct appeal that could produce a new trial; and it emphasizes that accessorial theories require proof of shared intent, not inference from surrounding misconduct. By remitting for a new upward-departure hearing after restoring a presumptive level two score, the court also highlights the importance of explicit, record-based departure determinations. In combination, these rulings shape future SORA practice toward more rigorous proof, more careful scoring, and clearer separation between presumptive scoring and departure adjudication.

Note: The opinion states it is “uncorrected and subject to revision before publication in the Official Reports.”