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82 YEAR SENTENCE FOR THREE BURGLARIES AND RECKLESS ENDANGERMENT DEEMED TOO HARSH FOR THIS PERSISTENT FELONY OFFENDER, REDUCED TO 35 YEARS TO LIFE (FOURTH DEPT).

The Fourth Department affirmed defendant’s burglary and reckless endangerment convictions and was  properly determined to be a persistent violent felony offender. However, the aggregate sentence of 82 years to life was deemed too harsh and was reduced to 35 years to life. People v Barnes, 2017 NY Slip Op 09004, Fourth Dept 12-22-17

CRIMINAL LAW (82 YEAR SENTENCE FOR THREE BURGLARIES AND RECKLESS ENDANGERMENT DEEMED TOO HARSH FOR THIS PERSISTENT FELONY OFFENDER, REDUCED TO 35 YEARS TO LIFE (FOURTH DEPT))/SENTENCING (82 YEAR SENTENCE FOR THREE BURGLARIES AND RECKLESS ENDANGERMENT DEEMED TOO HARSH FOR THIS PERSISTENT FELONY OFFENDER, REDUCED TO 35 YEARS TO LIFE (FOURTH DEPT))

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A JURY’S FAILURE TO RENDER A VERDICT ON A COUNT OF AN INDICTMENT IS THE EQUIVALENT OF AN ACQUITTAL ON THAT COUNT 4TH DEPT.
WAIVER OF APPEAL OF THE UNDERLYING PLEA DOES NOT PROHIBIT APPEAL OF THE SENTENCE FOR A SUBSEQUENT VIOLATION OF PROBATION; NO PRESERVATION REQUIREMENT; APPELLATE COURT HAS POWER TO MODIFY A LEGAL SENTENCE (FOURTH DEPT).
THE WARRANT REQUIRED THE SEIZED CELL PHONE BE “RETURNED TO THE COURT;” INSTEAD THE CELL PHONE WAS TURNED OVER TO A CYBERSECURITY CENTER WHICH CONDUCTED A FORENSIC EXAMINATION AND MEMORY EXTRACTION; DEFENSE COUNSEL’S FAILURE TO MOVE TO SUPPRESS THE INFORMATION GLEANED FROM THE CELL PHONE CONSTITUTED INEFFECTIVE ASSISTANCE; MANSLAUGHTER CONVICTION VACATED (FOURTH DEPT).
RESTITUTION IN EXCESS OF THE STATUTORY CAP FOR LOST WAGES WAS IMPROPERLY AWARDED BECAUSE “LOST WAGES” DOES NOT FIT ANY OF THE EXCEPTIONS TO THE CAP RESTRICTION (FOURTH DEPT).
FAMILY COURT DID NOT GIVE RESPONDENT ANY TIME TO PREPARE FOR THE CHILD SUPPORT HEARING AND INDICATED SHE HAD PREDETERMINED THE OUTCOME; ORDER REVERSED (FOURTH DEPT).
TRIPPING OVER EDGE OF A RUG NOT ACTIONABLE, NO SHOWING RUG DEFECTIVE OR DANGEROUS.
THE CASE WAS REMITTED TO SUPREME COURT TO PROCURE A RULING ON WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS; YET DEFENSE COUNSEL FOCUSED ON DEFENDANT’S SENTENCING AS AN ADULT AND ESSENTIALLY IGNORED THE “YOUTHFUL OFFENDER” ISSUE; DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL (FOURTH DEPT).

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FAILURE TO INFORM DEFENDANT OF THE PERIOD OF POSTRELEASE SUPERVISION FOR ONE... DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED...