- Court
- New York Supreme Court, Appellate Division, First Department
- Case
- People v. Prado
- Date
- June 2, 2026
- Slip Op. No.
- 2026 NY Slip Op 03404
Background
Defendant Jose Prado was adjudicated a level three sexually violent predicate sex offender under SORA following an override to a presumptive level three designation based on his prior felony sex conviction. Prado did not contest that the People’s proof supported the override. However, he requested a downward departure to level two, arguing that the automatic override based on his prior sex conviction effectively rendered the risk assessment instrument factors meaningless. He also contended that the supervision and treatment he would receive through civil commitment under Mental Hygiene Law article 10 should be considered as a mitigating factor supporting a downward departure. The Supreme Court, Bronx County, declined the departure request, and Prado appealed.
Holding
The Appellate Division unanimously affirmed the level three adjudication. The Court held that even when an override applies, the three-step Gillotti analysis applies in full, meaning the defendant may still seek a departure from the overridden presumptive level. However, factors already taken into account by the risk assessment instrument will generally not be considered as mitigation when offered in support of a downward departure request. Because the risk assessment instrument already accounts for supervision and treatment through risk factors 12 and 14, and Prado was not scored points under those factors, those considerations had already been credited and could not serve as additional grounds for departure. Prado’s argument that he would have an exceptional response to treatment was speculative and insufficient to warrant a departure.
Takeaways
When a SORA override applies, the presumptive risk level is elevated, but the Gillotti departure analysis remains available. However, the defendant faces a significant obstacle: factors already accounted for by the risk assessment instrument cannot be double-counted as mitigation for departure purposes. If a defendant received favorable scoring on specific risk factors (such as supervision and treatment), those considerations have already been incorporated into the analysis and cannot be relied upon again to justify a departure. The defendant must identify genuinely distinct mitigating circumstances not captured by the instrument to succeed on a departure application.
Why It Matters
This decision clarifies an important procedural and substantive point in SORA adjudications involving overrides. While the override does not preclude a departure application, it does create a meaningful barrier for defendants seeking to reduce their classification. Defense attorneys must identify mitigating factors that are truly external to the risk assessment instrument—factors not captured by any of the instrument’s categories—to have a viable basis for a downward departure when an override has been applied. The speculative assertion that civil commitment will provide effective treatment, without concrete evidence of exceptional circumstances, is insufficient.