You are here: / / Court Could Not Promise a “Violent Felony Override” Allowing...

Court Could Not Promise a “Violent Felony Override” Allowing Defendant to Participate in Programs While Incarcerated—Only the DOCCS Can Determine Defendant’s Eligibility—Conviction by Guilty Plea Reversed

The Second Department determined the sentencing court had no authority to promise the defendant, as part of the plea bargain, a “violent felony override” which would allow the defendant to participate in a variety of programs while incarcerated. Where a defendant is statutorily qualified (as defendant was) it is up to the Department of Corrections and Community Supervision (DOCCS) to determine a defendant’s eligibility for the programs.  Therefore, defendant’s guilty plea was reversed because it was based in part on misinformation (not knowing and voluntary):

… [A] “violent felony override” is “an imprecise and potentially confusing term that is sometimes used to describe a document referred to in 7 NYCRR 1900.4(c)(1)(iii) that permits the Department of Corrections and Community Supervision (hereinafter DOCCS) to ascertain whether an inmate has met one of the threshold requirements to be eligible for a temporary release program despite conviction of a specified violent felony offense” (id.; see Correction Law § 851[2]; Executive Order [Spitzer] No. 9 [9 NYCRR 6.9]; Executive Order [A. Cuomo] No. 2 [9 NYCRR 8.2]; 7 NYCRR 1900.4[c][1][ii], [iii]; [2]). “Certain subdivisions of the specified violent felony offenses will not disqualify an inmate from eligibility for temporary release. The document provided for in 7 NYCRR 1900.4(c)(1)(iii) need only set forth the exact offense, including the section, and subdivision if any, of the crimes of which the inmate was convicted. When the document indicates that the inmate was convicted of a subdivision of one of the enumerated violent felony offenses that does not automatically disqualify the inmate from eligibility for temporary release, the inmate may use it to establish that he has met one of the threshold requirements for eligibility” … . The document itself does not qualify an inmate for eligibility for temporary release … “It is for DOCCS, and not the court or the district attorney, to determine whether conviction under a particular section and subdivision disqualifies an inmate from eligibility” (id.; see generally 7 NYCRR 1900.4). The issuance of the document specified in 7 NYCRR 1900.4(c)(1)(iii) is not discretionary, and a defendant is entitled to have the exact statutory provisions under which he or she was convicted specified in the sentence and commitment … .

As part of the plea agreement, the County Court promised the defendant that it would sign a “violent felony override,” which would make the defendant eligible for several programs in prison. Since the document specified in 7 NYCRR 1900.4(c)(1)(iii) does not, by itself, qualify an inmate for eligibility for temporary release, and eligibility for temporary release programs are determined by DOCCS, the court exceeded its authority by promising the defendant something that it had no authority to promise in exchange for the defendant’s plea of guilty. Under these circumstances, the defendant’s plea of guilty was not knowing, voluntary, and intelligent… . People v Ballato, 2015 NY Slip Op 04140, 2nd Dept 5-13-15

 

 

You might also like
A COURT MUST ACCEPT AN ARBITRATOR’S INTERPRETATION OF CONFLICTING EVIDENCE; BUT THE TERMINATION OF THE TEACHER, WHO HAD AN UNBLEMISHED RECORD, FOR INAPPROPRIATELY RESTRAINING A FEMALE STUDENT, SHOCKED ONE’S SENSE OF FAIRNESS (SECOND DEPT).
IN THIS EMPLOYEE-EMPLOYER DISPUTE ABOUT A HEALTH INSURANCE PREMIUM CONTRIBUTION, THE CONTINUING WRONG DOCTRINE DID NOT APPLY TO TOLL THE STATUTE OF LIMITATIONS, EACH PAYCHECK WITH THE PREMIUM DEDUCTION WAS NOT AN INDEPENDENT WRONG (SECOND DEPT).
Obstruction of View of Stop Sign by Vegetation Not Actionable Against the Town Without Allegation Town Had Prior Written Notice of the Obstruction
THE CHILDREN’S HEARSAY EVIDENCE AND KNOWLEDGE FATHER LEGALLY POSSESSED A FIREARM DID NOT SUPPORT THE NEGLECT FINDING; THE EVIDENTIARY CRITERIA FOR NEGLECT ARE EXPLAINED IN DETAIL (SECOND DEPT).
THE STATUTORY PROCEDURE FOR SENTENCING A DEFENDANT AS A PERSISTENT FELONY OFFENDER WAS NOT FOLLOWED BY THE JUDGE; SENTENCE VACATED (SECOND DEPT).
ALTHOUGH PLAINTIFF DID NOT KNOW WHICH STEP SHE SLIPPED AND FELL FROM, THERE WAS EVIDENCE ALL THE STEPS WERE UNLEVEL AND SLOPING; DEFENDANT DID NOT DEMONSTRATE THE CONDITION OF THE STAIRWAY WAS LATENT AND NOT DISCOVERABLE; DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​
DEFENDANT PLED GUILTY TO THE CHARGES IN TWO INDICTMENTS, WITH RESPECT TO ONE OF THE INDICTMENTS, COUNSEL WHO NEGOTIATED THE PLEA OFFER HAD BEEN RELIEVED AS DEFENSE COUNSEL BECAUSE OF A CONFLICT OF INTEREST, CONVICTIONS REVERSED (SECOND DEPT).
DEFENDANT’S MOTION TO RENEW HIS OPPOSITION TO THE BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD HAVE BEEN GRANTED; THE BANK HAD ORIGINALLY ALLEGED IT POSSESSED THE NOTE AND THEREFORE HAD STANDING TO FORECLOSE; SUBSEQUENTLY THE BANK SUBMITTED A LOST NOTE AFFIDAVIT IN SUPPORT OF ITS MOTION TO CONFIRM THE REFEREE’S REPORT (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

“Bankruptcy” Exclusion in a Political Risk Insurance Policy Applied—Insurer... Plaintiff Did Not Adequately Allege a Presuit Demand Would Be Futile