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PROOF OF AN UNCHARGED SEXUAL OFFENSE RELIED UPON FOR AN UPWARD DEPARTURE WAS INSUFFICIENT; LEVEL THREE ASSESSMENT REDUCED TO LEVEL TWO (SECOND DEPT).

The Second Department reduced the defendant’s sex offender level from three to two because the evidence of an uncharged sexual offense was not sufficient:

… [A]lthough the defendant’s presumptive risk level was level two, the People contended that an upward departure was warranted based upon evidence that, approximately three months before the charged crime was committed, the defendant committed an uncharged sex offense against a different victim who allegedly was 15 years old at the time. While the People presented DNA evidence establishing that the defendant had sexual contact with the second alleged victim, the only evidence of that alleged victim’s age was a statement in a police report that she was 15 years old, and, since the police report stated that the alleged victim’s sexual contact with the defendant was willing, the bare notation of the victim’s age was the only proof of the crime on which the People relied. Thus, the Supreme Court should not have granted an upward departure since the evidence of the alleged victim’s age was not supported by a “detailed victim statement[ ]” … or otherwise corroborated … . People v Torres, 2019 NY Slip Op 07629, Second Dept 10-23-19

 

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WAIVER OF RIGHT TO APPEAL INVALID (SECOND DEPT).
THE SUPPRESSION MOTION WAS PROPERLY GRANTED; THE POLICE DID NOT HAVE REASONABLE SUSPICION WHEN DEFENDANT’S CAR WAS BLOCKED BY A POLICE CAR; THE APPELLATE COURT MAY CONSIDER A RULING WHICH WAS NOT EXPLICIT BASED ON THE CONTEXT OF THE RULING WITHIN THE RECORD (SECOND DEPT).
MOTION TO EXTEND TIME FOR SERVICE SHOULD HAVE BEEN GRANTED (SECOND DEPT).
JUDGE SHOULD NOT HAVE SEARCHED THE RECORD AND, SUA SPONTE, GRANTED RELIEF NOT REQUESTED IN THE MOTION PAPERS, INCLUDING THE APPLICATION OF THE RES IPSA LOQUITUR DOCTRINE (SECOND DEPT). ​
PLAINTIFF ALLEGED ASSAULT AND BATTERY BY POLICE OFFICERS; THE NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE ASSAULT AND BATTERY IS INTENTIONAL, NOT NEGLIGENT, CONDUCT; THE IMMUNITY AFFORDED POLICE OFFICERS RE: ASSAULT AND BATTERY EXTENDS ONLY TO “OBJECTIVELY REASONABLE” CONDUCT; THERE WERE QUESTIONS OF FACT ABOUT WHETHER THE POLICE CONDUCT WAS OBJECTIVELY REASONABLE (SECOND DEPT).
INSUFFICIENT EVIDENCE DEFENDANT SEX OFFENDER WAIVED HIS PRESENCE AT THE SORA RISK ASSESSMENT HEARING, ISSUE CONSIDERED IN THE INTEREST OF JUSTICE, NEW HEARING ORDERED (SECOND DEPT).
THE PROOF REQUIRED FOR SUMMARY JUDGMENT, FOR BOTH PLAINTIFFS AND DEFENDANTS, IN FORECLOSURE ACTIONS, ON WHETHER THERE HAS BEEN COMPLIANCE WITH THE RPAPL 1304 NOTICE PROVISIONS, EXPLAINED; PRIOR DECISIONS HOLDING THAT A DEFENDANT’S DENIAL OF RECEIPT OF NOTICE WAS SUFFICIENT SHOULD NO LONGER BE FOLLOWED (SECOND DEPT).

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