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VIRGINIA MURDER CONVICTION WHICH REQUIRED DEFENDANT TO REGISTER AS A SEX OFFENDER IN VIRGINIA DID NOT QUALIFY DEFENDANT AS A SEX OFFENDER IN NEW YORK (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant should not have been adjudicated a sex offender in New York based upon a murder conviction in Virginia, where he was required to register as a sex offender under Virginia law. The defendant was convicted of murdering a three year old child who had suffered trauma to his genitalia:

The defendant subsequently relocated to New York in November 2017. Following a hearing pursuant to Correction Law article 6-C, the Supreme Court adjudicated the defendant a level three sex offender. Insofar as relevant to this appeal, the court determined that the defendant’s mandatory registration under Virginia law made him a “sex offender” under Correction Law § 168-a(2)(d)(ii). The defendant appeals.

The victim’s extensive injuries in this case included “significant traumatic injuries to [his] scrotum and penis,” which were described at trial by the prosecution’s expert medical witness as having been inflicted “within hours to one day from the time of [the infant’s] death” and were “caused by blunt force trauma, probably squeezing” … . Nevertheless, as the People correctly concede, the order appealed from must be reversed in light of the Court of Appeals’ recent opinion in People v Diaz (32 NY3d 538), which held that mandatory registration as a murderer under Virginia Code § 9.1-902(D) does not qualify the defendant as a “sex offender” within the meaning of Correction Law § 168-a(2)(d)(ii). People v Covington, 2019 NY Slip Op 05429, Second Dept 7-3-19

 

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30-DAY TIME TO APPEAL WITH RESPECT TO ALL PARTIES IS TRIGGERED BY THE SERVICE OF THE ORDER OR JUDGMENT WITH WRITTEN NOTICE OF ENTRY BY ANY PARTY (SECOND DEPT).
THE SURGICAL PROCEDURE FOR WHICH THERE ALLEGEDLY WAS NO CONSENT WAS NOT DEMONSTRATED TO BE THE PROXIMATE CAUSE OF THE CLAIMED INJURIES, THEREFORE THE LACK OF INFORMED CONSENT CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED PURSUANT TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).
A PERSON ADJUDICATED A YOUTHFUL OFFENDER CAN REFUSE TO ANSWER QUESTIONS ABOUT THE CHARGES, THE POLICE INVESTIGATION, THE PLEA AND THE ADJUDICATION, BUT CANNOT REFUSE TO ANSWER QUESTIONS ABOUT THE UNDERLYING FACTS (SECOND DEPT).
TOWN DID NOT HAVE WRITTEN NOTICE OF A RUSTY DRAINAGE PIPE IN THE WATER AT A TOWN BEACH AND WAS THEREFORE NOT LIABLE FOR THE INJURY TO THE INFANT PLAINTIFF WHO CUT HIS FOOT ON THE PIPE WHEN WALKING IN THE WATER (SECOND DEPT). ​
MOTION TO SUBSTITUTE THE ADMINISTRATRIX OF PLAINTIFF’S ESTATE FOR THE DECEASED PLAINTIFF PROPERLY DENIED BECAUSE THE DELAY IN SEEKING SUBSTITUTION WAS NOT EXPLAINED, THE MERITS WERE NOT DESCRIBED, AND THE EXISTENCE OF PREJUDICE WAS NOT REBUTTED, HOWEVER THE ACTION COULD NOT BE DISMISSED ABSENT THE SUBSTITUTION OF A LEGAL REPRESENTATIVE (SECOND DEPT).
ALTHOUGH DEFENDANT WAS PROPERLY DETAINED, ONCE THE PAT-DOWN SEARCH REVEALED DEFENDANT DID NOT HAVE A WEAPON THE POLICE WERE NOT JUSTIFIED IN REMOVING THE (STOLEN) WALLET FROM DEFENDANT’S POCKET AND SEARCHING IT; THE ERROR WAS NOT HARMLESS UNDER THE STANDARD FOR CONSTITUTIONAL ERROR (SECOND DEPT).
DENYING THE APPLICATION FOR A PISTOL PERMIT WITHOUT A HEARING BASED UPON PRIOR ARRESTS WHICH DID NOT INVOLVE VIOLENCE OR A WEAPON WAS ARBITRARY AND CAPRICIOUS; MATTER REMITTED FOR A HEARING (SECOND DEPT).
CONCURRENT INCLUSORY COUNT MUST BE DISMISSED DESPITE FAILURE TO REQUEST THAT IT BE PRESENTED TO THE JURY IN THE ALTERNATIVE IN THIS CRIMINAL CONTEMPT PROSECUTION (SECOND DEPT).

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