- Court
- New York Supreme Court, Appellate Division, Second Department
- Case
- People v. Perez
- Date
- June 3, 2026
- Slip Op. No.
- 2026 NY Slip Op 03459
Background
In December 2023, defendant Eliseo Perez was convicted, upon his guilty plea, of rape in the third degree in violation of Penal Law Section 130.25(5). The County Court, Rockland County (Kevin F. Russo, J.), conducted a SORA hearing and assessed defendant a total of 75 points, designating him a level two sex offender. The People bore the burden of establishing the facts supporting the determination by clear and convincing evidence. Defendant challenged the point assessments and sought a downward departure.
Holding
The Appellate Division, Second Department, affirmed the designation, without costs or disbursements. The Court upheld the assessment of 10 points under risk factor 1 (use of forcible compulsion), based on the complainant’s statements in the police incident report and felony complaint. The 25 points under risk factor 2 (sexual intercourse/oral contact) were properly assessed because oral sexual contact was an essential element of the charged offense. The 20 points under risk factor 4 (continuing course of sexual misconduct) and 20 points under risk factor 5 (victim age 11-16) were supported by clear and convincing evidence from the case summary, police reports, and presentence investigation report showing three or more acts over at least two weeks against a complainant between ages 13 and 14.
The defendant’s request for a downward departure was unpreserved for appellate review because he failed to request it at the SORA hearing. Even if preserved, the defendant failed to establish entitlement to a departure.
Takeaways
This case demonstrates the breadth of evidence sources available to the People in SORA proceedings. Points may be established through complainant statements, police reports, felony complaints, case summaries, and presentence investigation reports, without foundation testimony. Each risk factor is assessed independently based on the evidence supporting it. The preservation requirement for downward departures is strictly enforced, cutting off appellate review when the request was not made below.
Why It Matters
SORA practitioners should prepare for hearings recognizing that the People can rely on a wide range of documentary evidence, including reliable hearsay, without live witness testimony. Defense counsel must challenge each risk factor assessment at the hearing level and, critically, must place any downward departure request on the record. The case also illustrates how elements of the offense of conviction can independently support point assessments under multiple risk factors, making guilty pleas to specific statutory subsections significant for SORA classification purposes.