People v. Wallace: Clarifying Proof for SORA Risk Factor 4 and Confirming Concurrent Convictions as Upward-Departure Aggravators

Introduction

This commentary analyzes the Appellate Division, Second Department’s decision in People v. Wallace (2025 NY Slip Op 04027, decided July 2, 2025). The case arises from two separate sex offense convictions resolved via Superior Court Informations (SCI Nos. 2447/14 and 2448/14). As the defendant’s release approached, the Supreme Court, Queens County, conducted Sex Offender Registration Act (SORA) hearings for each SCI and designated the defendant a level three sex offender in both matters—once by denying a downward departure and once by granting an upward departure. On appeal, the Second Department affirmed both orders.

The decision refines the evidentiary demands for assigning points under Risk Factor 4 (duration of sexual offense) and reaffirms that concurrent convictions involving different victims may constitute an aggravating factor justifying an upward departure. It also confirms the sufficiency of treatment records, admissions, and diagnoses to assess points under Risk Factor 11 (drug or alcohol abuse), and reiterates that a COMPAS score, standing alone, is not a mitigating factor for SORA purposes.

Summary of the Judgment

Two SORA orders affirmed for SCI Nos. 2447/14 and 2448/14, designating the defendant a level three sex offender in both.
SCI 2447/14: The court found a 20-point misassessment under Risk Factor 4 (duration) but deemed it harmless because the corrected total (120 points) still yielded a presumptive level three designation. The court properly assessed 15 points under Risk Factor 11 (drug/alcohol abuse). A downward departure was denied.
SCI 2448/14: The defendant’s presumptive level two (105 points) was upwardly departed to level three based on aggravating factors not captured by the Guidelines, including the concurrent conviction and acts involving different victims. Although the challenge to the upward departure was unpreserved, the court affirmed on the merits.
Across both SCIs, the court reaffirmed that the People must establish facts by clear and convincing evidence and may rely on reliable hearsay such as Board case summaries and treatment records.

Analysis

Precedents Cited and Their Influence

Burden and Evidentiary Sources:
- People v. Greenridge, 224 AD3d 852; People v. Levy, 192 AD3d 928: The People must prove SORA facts by clear and convincing evidence (Correction Law § 168-n[3]).
- People v. Vasquez, 189 AD3d 1480; People v. Luna, 187 AD3d 805: Points can be supported with reliable hearsay, including Board of Examiners case summaries and treatment records.
Risk Factor 4 (Duration of Offense):
- Guidelines at 10: “Continuing course of sexual contact” requires either (i) two or more sexual contacts (at least one being intercourse, oral, anal, or aggravated sexual contact) separated by at least 24 hours, or (ii) three or more acts over a period of at least two weeks.
- People v. Olmedo, 224 AD3d 854; People v. Parez, 221 AD3d 626; People v. Jarama, 178 AD3d 970; People v. George, 142 AD3d 1059: Case summaries describing “different occasions” are insufficient without temporal markers showing the 24-hour or two-week thresholds.
Risk Factor 11 (Drug/Alcohol Abuse):
- People v. Miles, 232 AD3d 917; People v. Robinson, 231 AD3d 754: Admissions, diagnoses, and treatment records can establish a history of substance abuse by clear and convincing evidence.
Downward Departures:
- People v. Gillotti, 23 NY3d 841: Framework for downward departures—(1) identify a legally cognizable mitigating factor not accounted for by the Guidelines; (2) prove it by a preponderance; (3) if shown, the court exercises discretion under the totality of circumstances.
- People v. Medina, 209 AD3d 775; People v. Jones, 196 AD3d 515; People v. Sofo, 168 AD3d 891: Applied the Gillotti test.
- People v. Zubradt, 224 AD3d 856; People v. Pareja-Hidalgo, 222 AD3d 892; People v. Saunders, 209 AD3d 776: Treatment participation is not inherently mitigating; only an exceptional response to treatment can justify a departure. Criminal history is already accounted for in the Guidelines.
- People v. Linares, 217 AD3d 974; People v. Zubradt, 224 AD3d 856: A COMPAS score, standing alone, is not a mitigating factor; specificity is required.
Upward Departures:
- Guidelines at 4; People v. Arteaga, 236 AD3d 833; People v. Cortez, 232 AD3d 675; People v. Wilkerson, 214 AD3d 683: The People must show an aggravating factor not adequately captured by the Guidelines by clear and convincing evidence; the court may depart if the RAI under-assesses actual risk.
- People v. Smith, 158 AD3d 654; People v. Burkhardt, 215 AD3d 696; People v. Ciccarello, 187 AD3d 1224; People v. Arteaga, 236 AD3d 833: Concurrent convictions and acts involving different victims can be aggravating factors supporting upward departure.
Preservation:
- People v. Smith, 158 AD3d 654; People v. Marte, 236 AD3d 938: Challenges to an upward departure should be preserved at the SORA hearing; unpreserved claims may be rejected on that ground, though courts often address the merits in the alternative.

Legal Reasoning

The court’s reasoning proceeds in four tracks that collectively sustain the level three designations:

Risk Factor 4 (SCI 2447/14):
The People’s reliance on a Board case summary that described acts against two male children on “different occasions” did not satisfy the temporal requirements of the Guidelines. Without evidence that acts were separated by at least 24 hours or occurred over a period of at least two weeks, 20 points for duration could not stand. This application of Olmedo, Parez, Jarama, and George ensures that duration points require specific temporal proof, not generalized references to multiple occasions.

Despite this correction, the defendant still had 120 points—well within level three (110+), making the error harmless to the ultimate risk level.
Risk Factor 11 in both SCIs:
The court affirmed 15 points for drug/alcohol abuse based on clear and convincing evidence: the defendant’s admissions to using hallucinogens and marijuana (including while incarcerated), participation in substance abuse treatment, and formal diagnoses of hallucinogenic use disorder and cannabis use disorder. Under Miles and Robinson, these sources constitute reliable evidence.
Downward Departure (SCI 2447/14):
Applying Gillotti and its progeny, the court found no qualifying mitigating factor not otherwise accounted for by the Guidelines. Ordinary participation in sex offender treatment and generalized criminal history are captured by the RAI and do not warrant departure. Further, the record showed the defendant was twice removed for poor participation and had not completed treatment; thus, he did not demonstrate an exceptional response justifying a departure (Zubradt; Pareja-Hidalgo; Saunders). The COMPAS score, without identification of a specific unique risk factor relevant to sexual recidivism not captured by SORA, is not an adequate mitigating factor (Zubradt; Linares).
Upward Departure (SCI 2448/14):
Although the defendant’s challenge was unpreserved, the court addressed the merits and affirmed the upward departure from presumptive level two (105 points) to level three. The People proved aggravating factors not adequately captured by the RAI—most notably, the concurrent conviction (SCI 2447/14) and the acts underlying it, which involved different victims. The RAI for SCI 2448/14 did not account for these additional victims, thereby under-assessing risk. This rationale is squarely supported by Arteaga, Cortez, Wilkerson, Burkhardt, Ciccarello, and Smith, which permit upward departure where the Guidelines understate the true public risk.

Impact and Forward-Looking Significance

Proof Demands for Risk Factor 4:
Prosecutors must marshal precise temporal evidence to justify duration points. Case summaries must specify dates or intervals demonstrating either the 24-hour separation or the two-week duration. Conclusory phrases like “on different occasions” are insufficient. Defense counsel should scrutinize case summaries for such temporal gaps and object accordingly.
Reliable Hearsay, Robustly:
The opinion endorses the use of treatment records, prison records, and admissions to support Risk Factor 11, showing that substance-use-related risk can be proven without live testimony if the sources are reliable. Expect broader reliance on correctional and clinical records in SORA hearings.
Departures Calibrated by Totality:
The decision maintains a high bar for downward departures, particularly on treatment-based arguments. Merely attending programs is not enough; documented, sustained, and exceptional progress—ideally with clinical corroboration—is required. On the other side, upward departures remain a viable tool to address under-assessment where multiple victims or concurrent convictions are not fully reflected in the RAI for the instant SCI.
Concurrent Convictions as Aggravators:
Wallace strengthens a line of cases allowing concurrent convictions involving different victims to serve as aggravating factors for upward departures. This has practical import in multi-victim or multi-docket prosecutions resolved contemporaneously: courts may consider cross-matter conduct where the RAI for a given SCI does not capture additional victims or conduct.
Preservation and Practice:
The opinion reiterates the need to preserve challenges to upward departures at the SORA hearing. Defense counsel should object contemporaneously; prosecutors should develop a clear record of aggravating factors and the reasons the RAI under-assesses risk.

Complex Concepts Simplified

SORA and the Risk Assessment Instrument (RAI):
New York’s SORA assigns points across multiple “risk factors” based on offense conduct, victim characteristics, criminal history, and other variables. The total points yield a presumptive level:
- Level 1: generally 70 points or less
- Level 2: generally 75–105 points
- Level 3: generally 110 points or more
Courts can depart up or down if the RAI under- or over-estimates risk.
Risk Factor 4 (Duration):
Adds points if there was a continuing course of sexual contact, proven by either multiple acts separated by at least 24 hours (with at least one serious act) or at least three acts over two weeks. Temporal specificity is key.
Risk Factor 11 (Drug/Alcohol Abuse):
Adds points where there is a history of substance abuse. Admissions, diagnoses, clinical evaluations, and treatment records can establish this by clear and convincing evidence.
Downward Departure:
An offender may ask the court to lower the level if there are mitigating factors not adequately considered by the Guidelines, proven by a preponderance of the evidence. “Exceptional” response to treatment is an example; merely attending programs usually is not enough.
Upward Departure:
The People may seek a higher level if there are aggravating factors not adequately captured by the RAI, proven by clear and convincing evidence. Concurrent convictions involving different victims are a recognized aggravator when the RAI does not count those victims.
Standards of Proof:
Clear and convincing evidence is a high civil standard requiring that the facts be highly probable. Preponderance of the evidence means more likely than not.
COMPAS:
A general risk assessment tool used in criminal justice. In SORA, a raw COMPAS score is not itself a mitigating factor; the defendant must identify a specific, relevant risk dimension not already reflected in the SORA Guidelines.
SCI (Superior Court Information):
A charging instrument used when a defendant waives indictment, allowing a felony to proceed without a grand jury indictment.

Key Practice Notes

For the People:
- For Risk Factor 4, include concrete dates or timelines in case summaries; attach corroborating records if available.
- Document substance use through admissions, diagnostic assessments, and treatment histories.
- For upward departures, articulate precisely why the RAI under-assesses risk (e.g., concurrent convictions with different victims not reflected in the instant SCI’s scoring) and prove those facts by clear and convincing evidence.
For the Defense:
- Object to duration points that lack temporal specificity; press for proof of the 24-hour or two-week thresholds.
- If seeking a downward departure, develop a robust record of exceptional treatment response with clinical letters, completion certificates, and longitudinal progress evidence.
- Preserve all challenges to upward departures at the hearing, and, if advancing COMPAS-based mitigators, identify and explain specific, unique risk dimensions not otherwise captured by SORA.

Conclusion

People v. Wallace refines the proof requirements for assigning points under Risk Factor 4, holding that generalized references to “different occasions” are insufficient without temporal markers demonstrating separation by at least 24 hours or a two-week period of ongoing conduct. At the same time, the decision confirms that a defendant’s substance abuse history may be established for Risk Factor 11 through reliable hearsay, including admissions, clinical diagnoses, and treatment records. On departures, the court reiterates orthodox principles: downward departures demand exceptional, well-documented mitigation not captured by the Guidelines, and COMPAS scores, without more, do not qualify; conversely, upward departures can properly rest on concurrent convictions and acts involving different victims when the RAI under-assesses risk.

The net effect is a careful calibration of SORA practice: it tightens evidentiary expectations for duration points, encourages reliance on reliable documentary proof for substance-related risk, and authorizes courts to capture real-world risk across multiple contemporaneous cases through upward departures. Wallace thus provides practitioners with a clear blueprint for building (or challenging) SORA records and underscores the judiciary’s commitment to accurate, evidence-based risk classification.