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DEFENDANT’S “PROMOTING A SEXUAL PERFORMANCE BY A CHILD” CONVICTION WAS REVERSED ON THE LAW; THE DEFENDANT CANNOT BE CLASSIFIED AS A “SEX OFFENDER” (FOURTH DEPT).

The Fourth Department noted that if the underlying conviction has been reversed and the indictment dismissed it can no longer be the basis for classifying the defendant as a “sex offender:”

While this appeal was pending, this Court reversed the judgment convicting defendant of eight counts of promoting a sexual performance by a child as a sexually motivated felony (Penal Law §§ 130.91, 263.15) on the law and dismissed the indictment … .

A “sex offender” includes a person who is convicted of an offense described in Correction Law § 168-a (2) or (3). However “[a]ny [such] conviction set aside pursuant to law is not a conviction” for purposes of the statute (§ 168-a [1]; see § 168-d [1] [a]). Inasmuch as defendant’s judgment of conviction has been “set aside pursuant to law” (§ 168-a [1]) by reversal of this Court …, defendant does not qualify as a “sex offender” within the meaning of SORA, and the risk level determination must be vacated … . People v Congdon, 2023 NY Slip Op 02228, Fourth Dept 4-28-23

Practice Point: Where a sexual-offense conviction has been reversed on the law and the indictment dismissed, the defendant cannot be classified as a “sex offender.”

 

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THE POLICE DID NOT HAVE PROBABLE CAUSE TO SEARCH THE VEHICLE IN WHICH DEFENDANT WAS A PASSENGER WHEN AN OFFICER ENTERED THE VEHICLE TO RETRIEVE THE REGISTRATION AND SAW A HANDGUN; THE DEFENDANT HAD STANDING TO CONTEST THE SEIZURE BECAUSE OF THE PEOPLE’S RELIANCE ON THE STATUTORY AUTOMOBILE PRESUMPTION; THE HANDGUN SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).
THE PEOPLE DID NOT DEMONSTRATE THE DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW BY WALKING IN THE MIDDLE OF THE STREET AT THE TIME OF THE STREET STOP; THEREFORE THE PEOPLE DID NOT DEMONSTRATE THE LEGALITY OF THE POLICE CONDUCT AND THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).
STRIKING OF PLEADINGS TOO SEVERE A SANCTION FOR SPOLIATION OF EVIDENCE.
PLAINTIFF ASSUMED THE RISK OF AN ACCIDENT INVOLVING HER GOLF CART AND A MOTOR VEHICLE IN THE COUNTY GOLF COURSE PARKING LOT; TWO JUSTICE DISSENT (FOURTH DEPT).
IN THIS VISITATION-MODIFICATION PROCEEDING, DAUGHTER’S OUT-OF-COURT STATEMENTS WERE NOT SUFFICIENTLY CORROBORATED.
THE SEARCH WARRANT FOR DEFENDANT’S CELL PHONE DID NOT MEET THE PARTICULARITY REQUIREMENT, THE EVIDENCE GLEANED FROM THE CELL PHONE SHOULD HAVE BEEN SUPPRESSED; NEW TRIAL ORDERED; KIDNAPPING SECOND DEGREE IS AN INCLUSORY CONCURRENT COUNT OF KIDNAPPING SECOND DEGREE AS A SEXUALLY MOTIVATED FELONY, THE COUNTS MUST BE SUBMITTED TO THE JURY IN THE ALTERNATIVE (FOURTH DEPT). ​
THE MAJORITY CONCLUDED JUROR 15 WAS ONE OF TWO JURORS WHO GAVE A NON-VERBAL ASSURANCE HE WOULD NOT HOLD IT AGAINST THE DEFENDANT IF HE DID NOT TESTIFY; THE DISSENT ARGUED THE RECORD DOES NOT IDENTIFY JUROR 15 AS ONE OF THE TWO JURORS AND DID NOT DESCRIBE THE NATURE OF THE NON-VERBAL ASSURANCE (FOURTH DEPT).
FOR PURPOSES OF CLAIMANT’S ACTION FOR WRONGFUL CONVICTION AND IMPRISONMENT, THE TRIAL ORDER OF DISMISSAL IN THE CRIMINAL TRIAL WAS THE EQUIVALENT OF AN ACQUITTAL (FOURTH DEPT).

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