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THE DISSENT IN THIS PERSISTENT VIOLENT FELONY OFFENDER CASE ARGUED THE 34-YEAR SENTENCE FOR THE 34-YEAR-OLD DEFENDANT WAS HARSH AND EXCESSIVE, NOTING THAT THE BURGLARIES WERE IN THE DAYTIME WHEN NO ONE WAS HOME (SECOND DEPT).

The Second Department, over a dissent, determined the 34-year sentence for four counts of burglary and related offenses was not unduly harsh or excessive. The majority concluded that the schizophrenia and bipolar mood disorder diagnoses were self-reported and unsupported:

We … disagree with our dissenting colleague that a reduction in the defendant’s sentence is warranted due to the defendant’s mental health condition. While it is undisputed that the defendant qualified for some level of mental health services, and, as the trial testimony reflected, among other things, that the defendant’s former parole officer was assigned to parolees that had a mental health diagnosis, the nature and scope of the defendant’s mental health condition was never probed at trial or at sentencing. The diagnoses of schizophrenia and bipolar mood disorder were self-reported by the defendant to the Department of Probation, but no medical records were introduced to corroborate the defendant’s statements. Moreover, at sentencing, the People introduced an audio recording of a phone call made by the defendant … , while he was incarcerated during the pendency of this matter, in which he admitted to having previously lied about having auditory hallucinations in order to acquire supportive housing.

From the dissent:

The gravity of a defendant’s criminal conduct, a defendant’s extensive criminal history, and the need for societal protection are already taken into consideration by the Penal Law provisions providing enhanced sentences for persistent violent felony offenders … . Contrary to the determination of my colleagues, nothing in this record warranted a further enhancement of the already-enhanced minimum aggregate sentence of an indeterminate term of imprisonment of 16 years to life, followed by lifetime parole supervision.

The defendant committed daytime burglaries when no one was home, and stole items such as jewelry, fur coats, and electronics. No victim had any encounter with the defendant. Even without considering any other factors, an aggregate term of imprisonment of 34 years to life is grossly disproportionate to the harm caused by the defendant’s conduct. People v West, 2023 NY Slip Op 03932, Second Dept 7-26-23

Practice Point: Here the sentence was already enhanced by defendant’s persistent violent felony status when it was further enhanced by the sentencing court. The majority concluded the sentence was not harsh and excessive. The dissent disagreed, noting that all the burglaries took place in the daytime when no one was home.

 

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THE DEFENDANT DID NOT CONSENT, IN A WRITING SIGNED IN OPEN COURT, TO THE SUBSTITUTION OF AN ALTERNATE JUROR AFTER DELIBERATIONS HAD BEGUN REQUIRING A NEW TRIAL; THE SHOWUP IDENTIFICATION OF DEFENDANT WAS UNREASONABLE AND UNDULY SUGGESTIVE REQUIRING DISMISSAL OF THE COUNTS RELATED TO ONE OF THE TWO ROBBERIES (SECOND DEPT). ​
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QUESTIONS OF FACT RAISED ABOUT THE APPLICABILITY OF THE STORM IN PROGRESS RULE, WHETHER THE DEFECT WAS TRIVIAL AND WHETHER PLAINTIFF WAS INJURED BY A CONDITION HE WAS HIRED TO REPAIR; SLIP AND FALL OCCURRED ON DEPARTMENT OF EDUCATION, NOT NYC, PROPERTY (SECOND DEPT).
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A NOTICE OF CLAIM IS NOT A PLEADING AND THEREFORE NEED NOT BE ANNEXED TO A SUMMARY JUDGMENT MOTION; ALTHOUGH PLAINTIFF IN THIS LABOR LAW 240 (1) AND 241 (6) ACTION ESTABLISHED HE FELL FROM A SCAFFOLD, HE DID NOT ESTABLISH THE FALL WAS DUE TO INADEQUATE SAFETY EQUIPMENT; HIS MOTION FOR SUMMARY JUDGMENT WAS PROPERLY DENIED ON THAT GROUND (SECOND DEPT).
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