Statutory Rape 3rd Degree Appeal in New York

In People v. Santiago, 20 AD3d 885, 798 NYS2d 612 (4th Dept 2005), defendant was a 21 year old who engaged in sexual intercourse with another person less than 17 years of age and was convicted of rape in the third degree (Penal Law 130.35 [2]). The County Court found the defendant to be a level three sex offender based on the risk factor analysis in the risk assessment instrument. On defendant's appeal, the Court held that a downward departure to a level two risk was appropriate, based upon clear and convincing evidence in the record. Specifically, the Court there found that defendant had no prior convictions for sex crimes, that the victim was a willing participant, and was "only a few months from the age of 17." (Santiago at 886.) Further, defendant had been unable to complete his sex offender treatment because he was discharged from custody. These were "mitigating factors of a kind, or to a degree, not otherwise adequately taken into account by the guidelines." In Santiago, it is clear that where the presumptive risk level based on the Guidelines does not reflect a particular defendant's potential for repeat offending, a departure from that level is warranted.