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THE CRIME TO WHICH DEFENDANT PLED DID NOT HAVE A FORCIBLE COMPULSION ELEMENT SO 10 POINTS SHOULD NOT HAVE BEEN ASSESSED ON THAT GROUND; HOWEVER THE MATTER WAS SENT BACK BECAUSE AN UPWARD DEPARTURE MIGHT BE WARRANTED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the offense to which defendant pled guilty, criminal sexual act in the first degree, does not have forcible compulsion as an element and therefore the risk assessment must be reduced by 10 points. However the court noted that an upward department might be appropriate and sent the matter back:

… [T]he court erred in that assessment inasmuch as defendant pleaded guilty to criminal sexual act in the first degree under subdivision (3) of Penal Law § 130.50, which does not require evidence of forcible compulsion … , and there was no other evidence in the record establishing that defendant used forcible compulsion in committing the crime. When those 10 points are subtracted, defendant’s total score makes him a presumptive level two risk.

Nevertheless, we note that an upward departure from the presumptive level may be warranted, i.e., there may be evidence of “an aggravating . . . factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines”… . Here, however, “because defendant was determined to be a level three sex offender, County Court had no reason to consider whether clear and convincing evidence exists to warrant such a departure” … . People v Weber, 2019 NY Slip Op 07197, Fourth Dept 10-4-19

 

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WHEN A WITNESS’S IDENTIFICATION OF THE DEFENDANT FROM A PHOTOGRAPH SHOWN TO HIM BY THE POLICE IS DEEMED “CONFIRMATORY,” THAT CONCLUSION IS TANTAMOUNT TO A DETERMINATION AS A MATTER OF LAW THAT THE POLICE IDENTIFICATION PROCEDURE WAS NOT SUGGESTIVE AND COULD NOT HAVE LED TO THE MISIDENTIFICATION OF THE DEFENDANT BECAUSE THE WITNESS KNEW THE DEFENDANT WELL; HERE THE PROOF THE IDENTIFICATION WAS CONFIRMATORY WAS INSUFFICIENT; THE IDENTIFICATION TESTIMONY SHOULD HAVE BEEN SUPPRESSED; NEW TRIAL ORDERED (FOURTH DEPT).
PLAINTIFF’S EXPERT’S AFFIDAVIT WAS CONCLUSORY AND DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER DEFENDANTS PROXIMATELY CAUSED PLAINTIFF’S PARALYSIS, THE DISSENT DISAGREED (FOURTH DEPT).
THE “NOTICE-OF-A-DANGEROUS-CONDITION” REQUIREMENT FOR A SLIP AND FALL CAUSE OF ACTION BROUGHT BY A POLICE OFFICER PURSUANT TO GENERAL MUNICIPAL LAW 205-E IS IDENTICAL TO THE NOTICE REQUIREMENT IN A COMMON LAW SLIP AND FALL ACTION (FOURTH DEPT).
THE SORA COURT SHOULD HAVE CONSIDERED THAT THE DEFENDANT DID NOT REOFFEND DURING AN EXTENDED TIME WHEN HE WAS NOT SUPERVISED AS A MITIGATING FACTOR WHICH MAY WARRANT A DOWNWARD DEPARTURE IN THIS SORA RISK-LEVEL PROCEEDING (FOURTH DEPT).
RECORD IS NOT SUFFICIENT TO DETERMINE HOW THE TRIAL COURT HANDLED NOTES FROM THE JURY, NEW TRIAL ORDERED; CHALLENGE TO THE PROPRIETY OF HOLDING A RECONSTRUCTION HEARING IS MOOT AND WILL NOT BE CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (FOURTH DEPT).
THE INFORMATION SOUGHT BY DEFENDANT IN THIS SUIT BY THE INSURER TO DISCLAIM COVERAGE WAS PROTECTED BY ATTORNEY-CLIENT PRIVILEGE AS MATERIAL PREPARED IN ANTICIPATION OF LITIGATION (FOURTH DEPT).
DEFENDANT’S REFUSAL TO TURN AROUND AND HIS HANDS POSITIONED AT HIS WAISTBAND JUSTIFIED AN OFFICER’S DRAWING HIS WEAPON AND POLICE PURSUIT.
Rebuttal Witness Properly Called by the People to Show Possible Bias of Defense Witness

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