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PERIOD OF POSTRELEASE SUPERVISION CAN NOT BE IMPOSED ON AN INDETERMINATE SENTENCE, ILLEGAL SENTENCE CONSIDERED ON APPEAL EVEN THOUGH THE ISSUE WAS NOT RAISED BY EITHER PARTY (FOURTH DEPT).

The Fourth Department determined the period of postrelease supervision was not authorized for the indeterminate sentence imposed on the tampering with physical evidence conviction:

Supreme Court imposed a period of postrelease supervision in connection with defendant’s conviction of tampering with physical evidence. That was error inasmuch as a period of postrelease supervision is not authorized in connection with an indeterminate sentence (see Penal Law § 70.45 [1] … ). Although the issue is not raised by either party, we cannot allow an illegal sentence to stand … . We therefore modify the judgment by vacating that period of postrelease supervision … . People v Harvey, 2019 NY Slip Op 02250, Fourth Dept 3-22-19

 

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A HEARING ON A DEFENDANT’S ELIGIBILITY FOR AN ALTERNATIVE SENTENCE PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) CANNOT BE WAIVED AS A CONDITION OF A PLEA AGREEMENT; SENTENCE VACATED AND MATTER REMITTED (FOURTH DEPT). ​
Conflict of Interest Waived Where Respondent Knew of the Conflict and Participated in Prior Proceedings for Some Time
PENNSYLVANIA CRIME IS NOT THE EQUIVALENT OF A NEW YORK FELONY; DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER (FOURTH DEPT).
AN EXCEPTION TO THE BEST EVIDENCE RULE APPLIED, ALLOWING TESTIMONY DESCRIBING THE CONTENTS OF DESTROYED VIDEO SURVEILLANCE (FOURTH DEPT). ​
MAINTENANCE FEES IMPOSED BY THE TOWN FOR TRIMMING AND REMOVING BRUSH ON PRIVATE PROPERTY ARE NOT TAXES, THEREFORE THE TOWN IS NOT ENTITLED TO CREDIT FROM THE COUNTY FOR UNPAID MAINTENANCE FEES, TWO JUSTICE DISSENT (FOURTH DEPT). ​
FATHER AND MOTHER SUBMITTED INADMISSIBLE EVIDENCE TO SUPPORT THEIR SUMMARY JUDGMENT MOTIONS ON THE ISSUE WHETHER THE CHILDREN WERE CONSTRUCTIVELY EMANCIPATED; FATHER’S MOTION FOR SUMMARY JUDGMENT ON HIS PETITION TO TERMINATE HIS CHILD SUPPORT OBLIGATIONS WAS PROPERLY DENIED BUT MOTHER’S PETITION FOR SUMMARY JUDGMENT DISMISSING FATHER’S PETITION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).
EVEN WHERE THERE IS EVIDENCE DEFENDANT INTENTIONALLY AIDED IN THE COMMISSION OF THE UNDERLYING FELONY, THE TRIAL JUDGE MUST INSTRUCT THE JURY ON THE FELONY-MURDER AFFIRMATIVE DEFENSE WHERE THERE IS EVIDENCE THE DEFENDANT DID NOT PARTICIPATE IN THE ACTS CAUSING THE VICTIM’S DEATH AND THERE IS EVIDENCE TO SUPPORT ALL THE ELEMENTS OF THE DEFENSE (FOURTH DEPT).

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