You are here: / / JURY INSTRUCTION ALLOWED CONVICTION ON A THEORY NOT IN THE INDICTMENT,...
,

JURY INSTRUCTION ALLOWED CONVICTION ON A THEORY NOT IN THE INDICTMENT, COUNT DISMISSED, SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT).

The Fourth Department determined that the harassment jury instruction was defective because it allowed the jury to convict on a theory that was not alleged in the indictment. The Fourth Department further found that the 18-year sentence for rape was unduly harsh and reduced the sentence to eight years. The Fourth Department noted that the sentencing court did not take certain mitigating factors into consideration and indicated defendant was sentenced harshly because he had decided to go to trial:

Here, the indictment charged defendant with harassment in the second degree on the ground that … he slapped the complainant with the intent to harass, annoy, or alarm her. Nevertheless, the court instructed the jury that it could find him guilty if he shoved her or subjected her to other forms of physical contact. The evidence at trial could have established either theory. Therefore, that part of the judgment convicting defendant of harassment in the second degree must be reversed … . …

… [T]he sentence imposed for rape in the first degree is unduly harsh and severe. The alleged incident occurred in the context of an intimate relationship that lasted several months between two otherwise consenting adults who were close in age. The complainant had the opportunity to report the incident to the police immediately after it happened but chose not to do so. In the recorded conversations between defendant and the complainant, which occurred two to three months after the incident, the complainant repeatedly expressed satisfaction with her relationship, and a willingness to use the criminal justice system to gain the upper hand in it. We note that defendant’s history of contacts with the criminal justice system is not extensive, and thus it does not weigh heavily against him.

The record does not indicate that the sentencing court considered any of the above substantial mitigating factors in imposing the sentence. To the contrary, the court expressed only that it wished to impose a sentence for rape in the first degree in excess of the offers made during the plea bargaining process. Indeed, the sentence of 18 years of incarceration is double that of the most recent plea offer. It is well established that a defendant may not be punished for exercising his constitutional right to a trial … . Although a sentence after trial usually will be harsher than a sentence accompanying a prior plea offer … , a defendant’s refusal to plead guilty does not absolve the court of its responsibility to consider appropriate sentencing factors … . People v Morales, 2018 NY Slip Op 02958, Fourth Dept 4-27-18

​CRIMINAL LAW (JURY INSTRUCTION ALLOWED CONVICTION ON A THEORY NOT IN THE INDICTMENT, COUNT DISMISSED, SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, JURY INSTRUCTION ALLOWED CONVICTION ON A THEORY NOT IN THE INDICTMENT, COUNT DISMISSED, SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT))/SENTENCING (SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT))/HARSH AND SEVERE (SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT))

You might also like
IN THIS DENTAL MALPRACTICE ACTION, PLAINTIFF RAISED ISSUES OF FACT ABOUT THE APPLICABILITY OF THE CONTINUOUS TREATMENT DOCTRINE TO TOLL THE STATUTE OF LIMITATIONS, THE DEVIATION FROM THE STANDARD OF CARE, AND THE LACK OF INFORMED CONSENT (FOURTH DEPT).
THE CUSTODIAL INTERFERENCE OFFENSES DID NOT TAKE PLACE IN ONTARIO COUNTY AND DID NOT HAVE A PARTICULAR EFFECT ON ONTARIO COUNTY; THEREFORE THE COURT DID NOT HAVE JURISDICTION OVER THEM (FOURTH DEPT).
Exculpatory Evidence Provided by Co-Defendant Should Not Have Been Struck from the Record When Co-Defendant Asserted His Privilege Against Self-Incrimination
BEFORE GRANTING THE AREA VARIANCE, THE ZONING BOARD OF APPEALS DID NOT REFER THE APPLICATION TO THE PLANNING BOARD AS REQUIRED BY THE GENERAL MUNICIPAL LAW; THE DETERMINATION WAS ANNULLED (FOURTH DEPT).
Florida Choice of Law Provision Re: Covenants Not to Compete Unenforceable in New York/the Nonsolicitation Covenant at Issue Was Overbroad and Unenforceable
Valid Waiver of Appeal Did Not Encompass Challenge to Severity of Sentence in this Case
THE PEOPLE’S GROUND FOR STEP ONE OF THE BATSON CHALLENGE PROCEDURE WAS NOT FACTUALLY CORRECT, THE JUDGE SHOULD NOT HAVE PROCEEDED TO STEP TWO AND THE JUROR SHOULD NOT HAVE BEEN SEATED (FOURTH DEPT).
NEGLIGENT BRAKING BY TRUCK DRIVER, IN RESPONSE TO A COLLISION WITH A THIRD PARTY, MAY HAVE BEEN A PROXIMATE CAUSE OF THE COLLISION BETWEEN THE TRUCK AND PLAINTIFFF. 

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

A DEFENDANT WHO REQUESTS A RESTITUTION HEARING IS ENTITLED TO ONE, EVEN WHERE... IMPORTANT WITNESS RECANTED HER TRIAL TESTIMONY, MOTION TO VACATE CONVICTION...