In People v Brewer (2009 NY Slip Op 04548 4th Dept 6/5/09) the Court reduced the defendant's SORA level from a level three to a level two even though the defendant was presumptively a level three risk pursuant to the risk assessment instrument. The Court ruled that the lower court's determination was not an "abuse of discretion" it was, under the circumstances, an "improvident exercise of discretion." The Court explained that

that there is clear and convincing evidence of special circumstances to warrant a downward departure from the presumptive risk level (see People v Weatherley, 41 AD3d 1238; see also People v Smith, 30 AD3d 1070). Defendant was 20 years old when he engaged in the underlying offense, i.e., sexual activity with a 16-year-old female who admitted that she willingly engaged in the sexual activity. There was no allegation or evidence of forcible compulsion. The record further establishes that this was defendant's first and only sex offense and that defendant was enrolled in sex offender counseling at the time of the SORA hearing.

Thus, the Court decided to "substitute [its] own discretion 'even in the absence of an abuse [of discretion]' (Matter of Von Bulow, 63 NY2d 221, 224)." Since this finding that there was an "improvident exercise of discretion" is an act of discretion, not a ruling on the law, it is not reviewable by the Court of Appeals. People v Baker, 64 NY2d 1027 (1985).

It is important for appellate counsel to realize that the discretionary authority of the Appellate Division is as broad as that of the trial court (Matter of Von Bulow, 63 NY2d 221, 225, n.; People v Belge, 41 NY2d 60) and when it is exercised it is not reviewable unless it is abused. People v Baker, 64 NY2d 1027 (1985).