Zero-Point RAI Factors May Still Support SORA Downward Departures: Employment and Family Support as Mitigation (People v. Green)

1. Introduction

In People v Green (2026 NY Slip Op 03378 [May 28, 2026]), the New York Court of Appeals addressed a recurring Sex Offender Registration Act (SORA) question: whether “strong and extensive family support and gainful employment” may qualify as mitigating circumstances “not adequately taken into account” by the SORA Risk Assessment Guidelines (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary [2006]) when the Registrant has already received zero points on the relevant “release environment” risk factor (risk factor 15).

The People (Respondent) opposed a downward departure sought by Hikeem Green (Appellant), who had pleaded guilty to two counts of sex trafficking (Penal Law § 230.34 [5]) involving two victims he held against their will, forced into prostitution, and raped. After remittal from the Appellate Division on a prior notice error, Supreme Court again designated Green a presumptive level three offender (115 points) and denied a departure. The Appellate Division affirmed, and the Court of Appeals granted leave.

The Court’s decision clarifies the legal availability of “degree-based” mitigation under SORA where the Guidelines already touch the subject matter—particularly release environment—and explains how such claims fit within the three-step framework governing departures.

2. Summary of the Opinion

The Court of Appeals held that gainful employment and strong family support can serve as mitigating circumstances “not adequately taken into account” by the Guidelines for purposes of a downward departure request, even where the RAI assigns zero points under risk factor 15.

Nonetheless, the Court affirmed the denial of a downward departure here because the Appellate Division did not abuse its discretion in concluding that Green failed to prove, by a preponderance of the evidence, that those mitigating circumstances existed to an extent not adequately accounted for (i.e., he failed at step two of the governing framework).

3. Analysis

3.1. Precedents Cited

  • People v Gillotti, 23 NY3d 841 (2014):
    • Serves as the controlling framework for departure requests. The Court reaffirmed Gillotti’s three-step analysis: (1) legal adequacy of the Guidelines’ treatment of the asserted factor; (2) factual proof by a preponderance that the factor exists in the case; (3) discretionary weighing under the totality of circumstances to avoid overassessment of dangerousness or recidivism risk.
    • Critically, Gillotti and the Guidelines allow departures for differences “in degree,” which became the doctrinal bridge enabling the Court’s holding that a “zero-point” factor may still be mitigation in an atypical case.
  • People v Anthony, 40 NY3d 976 (2023):
    • Anthony expressly “left open” when evidence relevant to scoring a particular risk factor—including where the registrant received zero points—may also be considered as mitigation on a downward departure application.
    • Green answers that open question: such evidence may be considered as mitigation if the Guidelines do not adequately account for its risk-reducing force in the circumstances presented.
  • People v Perez, 35 NY3d 85 (2020):
    • Cited for two themes: SORA’s community-protective aim and the need for an “individualized” risk assessment.
    • Also supports the deference/abuse-of-discretion posture on appellate review of departure determinations.
  • People v Townsend, — NY3d — (decided today):
    • Used by analogy to show that “degree” outside the Guidelines’ ordinary calibration can justify departure—there, atypical criminal history as aggravation; here, atypically supportive release conditions as mitigation.
  • People v Shader, 43 NY3d 129 (2024) (Garcia, J., concurring in result):
    • Invoked in the concurrence to emphasize SORA’s “primary goal” of public protection from recidivism and to caution against speculative mitigation that could under-assess risk without an “upward modification” mechanism.
  • Additional Appellate Division and related authorities (primarily discussed in the concurrence as existing avenues for considering post-release conduct):
    • People v Collier, — NY3d —, 2026 NY Slip Op 00074 (2026)
    • People v Gonzalez, 138 AD3d 814 (2d Dept 2016)
    • People v Booker, 240 AD3d 620 (2d Dept 2025)
    • People v Davis, 179 AD3d 183 (2d Dept 2019)

3.2. Legal Reasoning

A. The new clarification: “zero points” does not foreclose mitigation

The Court reasoned from the structure and purpose of the Guidelines:

  • The RAI is designed as an “objective” instrument expected to classify correctly “in most cases,” making departures exceptional (Guidelines at 4).
  • But the Guidelines and Gillotti explicitly permit departures based on a difference in degree. If departures may turn on degree, then an RAI score (including zero) cannot categorically exhaust the inquiry in every case.
  • Therefore, when the RAI’s treatment of a subject does not adequately capture the risk-reducing effect of the offender’s circumstances, courts may consider that same subject matter as mitigation notwithstanding a zero-point score.

B. Application to risk factor 15 (“Living or Employment Situation”)

Risk factor 15 assigns points for an “inappropriate” living or employment situation—i.e., circumstances increasing opportunity or reducing detectability (Guidelines at 17). The Court held that the opposite (stable, appropriate employment; supportive family/friends in living arrangements or nearby) may be mitigation if it exists to a degree the Guidelines do not adequately account for.

The Court also recognized practical features that affect weight, not admissibility:

  • Release-environment factors are weighted less heavily (Guidelines at 6) because they are mutable and can dissipate over time.
  • The registrant may seek annual modification (Correction Law § 168-o), while the People generally lack symmetrical means to increase the level when conditions change—supporting careful discretionary weighing at step three rather than a categorical bar at step one.

C. Why Green still loses: failure of proof and discretion

Although the Court announced the legal availability of the two mitigators, it affirmed because the Appellate Division permissibly concluded Green did not carry his step-two burden (preponderance) to establish that his employment and support system, as shown in the record, actually demonstrated mitigating circumstances to the requisite degree or shown to reduce his reoffense risk.

The Court also included a process-oriented admonition: it is “best practice” for lower courts to specify which Gillotti step they are resolving—an important signal aimed at improving SORA hearing clarity and appellate review.

D. The concurrence: a warning about “aspirational” mitigation

Judge Garcia (joined by Judges Singas and Troutman) concurred in the result but criticized the breadth of the majority rule. The concurrence’s core points were:

  • Courts already had two avenues to consider employment and support: (1) when a registrant has lived offense-free in the community before a delayed hearing; (2) on annual modification under Correction Law § 168-o.
  • The new rule risks allowing downward departures based on anticipated jobs or support that may not materialize, while the People lack an “upward modification” mechanism if the risk level is under-assessed.
  • The majority also went beyond factor 15 to broadly resolve the “zero points” question for all risk factors, which, per the concurrence, invites expanded litigation over many “no points” determinations.

3.3. Impact

Doctrinal impact: People v Green establishes that the “subject matter” of a risk factor can still be used as mitigation even when the offender receives zero points for that factor—so long as the asserted circumstance exists to a degree not adequately accounted for by the Guidelines.

Practical impact on SORA hearings:

  • Defense counsel will likely frame mitigation more often as “degree-based” departures, including for factors already addressed by the RAI.
  • Courts will need to develop records on how asserted supports (employment stability, supportive networks) concretely reduce risk—i.e., not merely that they exist, but that they exist to an atypical extent and meaningfully bear on recidivism/dangerousness.
  • Trial courts may increase step-specific findings to avoid the “silent denial” problem noted here and to reduce the risk of appellate remand or appellate factfinding from an incomplete record.

Systemic tension highlighted: The majority’s individualized-assessment rationale (public protection through accurate calibration) collides with the concurrence’s administrability and asymmetry concerns (mutable conditions; limited People’s recourse). Future litigation may focus on step three—how much weight to assign to mutable release-environment mitigators and what proof is sufficient at step two.

4. Complex Concepts Simplified

  • SORA risk levels (1, 2, 3): Classifications tied to registration duration and public notification, based on total RAI points. Level three reflects the highest assessed risk/dangerousness.
  • RAI (Risk Assessment Instrument): A point-based scoring tool derived from the Guidelines to standardize risk classification.
  • Downward departure: A court-ordered reduction from the presumptive risk level when special circumstances show the Guidelines overstate risk.
  • The Gillotti three-step test:
    1. Legal step: Is the proposed mitigator outside (or insufficiently captured by) the Guidelines?
    2. Fact step: Has the offender proved it exists in this case by a preponderance of the evidence?
    3. Discretion step: Considering all circumstances, would failing to depart overassess risk?
  • “Zero points” on a factor: The Guidelines did not find that factor increased risk. Green holds that “zero points” does not automatically mean the converse cannot be unusually risk-reducing (mitigating).
  • Risk factor 15 (release environment): Focuses on whether housing/employment conditions are “inappropriate” and thus increase risk; Green allows unusually stabilizing conditions to support mitigation.

5. Conclusion

People v Green makes a significant clarification in SORA departure doctrine: even when the RAI assigns zero points under a risk factor, the same subject matter may still serve as a mitigating circumstance for a downward departure if it exists to a degree not adequately accounted for by the Guidelines. The Court grounded this rule in People v Gillotti’s “difference in degree” concept and SORA’s mandate for individualized risk assessment.

At the same time, Green underscores that legal eligibility for mitigation is only the beginning: defendants must still prove the asserted mitigating circumstances by a preponderance of the evidence and persuade the court, under the totality of circumstances, that a lower level is necessary to avoid overassessment. The concurrence highlights unresolved policy tensions—especially around speculative, mutable release-environment claims and the People’s limited ability to correct underassessment—setting the stage for future disputes over evidentiary sufficiency and the weight accorded to post-release supports.