You are here: / SEX OFFENDER CERTIFICATION IS PART OF THE JUDGMENT OF CONVICTION AND MUST...

Search Results

/ ,

SEX OFFENDER CERTIFICATION IS PART OF THE JUDGMENT OF CONVICTION AND MUST BE CHALLENGED ON APPEAL FROM THE JUDGMENT, NOT IN A SORA RISK-LEVEL PROCEEDING.

The First Department determined that sex-offender certification is part of the judgment of conviction. Challenge to sex-offender certification, therefore, must be raised on appeal from the judgment and cannot be raised for the first time in a SORA risk-level determination:

Although this appeal from a risk level determination is not subject to dismissal, it does not bring up for review defendant’s claim that his underlying New York felony conviction was not for an offense requiring registration as a sex offender. Sex offender certification is part of the judgment of conviction, and the proper occasion for defendant to have challenged that certification was on an appeal from the judgment …, but defendant did not appeal. People v Miguel, 2016 NY Slip Op 04666, 1st Dept 6-14-16

 

CRIMINAL LAW (SEX OFFENDER CERTIFICATION IS PART OF THE JUDGMENT OF CONVICTION AND MUST BE CHALLENGED ON APPEAL FROM THE JUDGMENT, NOT IN A SORA RISK-LEVEL PROCEEDING)/APPEALS (SEX OFFENDER CERTIFICATION IS PART OF THE JUDGMENT OF CONVICTION AND MUST BE CHALLENGED ON APPEAL FROM THE JUDGMENT, NOT IN A SORA RISK-LEVEL PROCEEDING)/SEX OFFENDER REGISTRATION ACE (SORA) (SEX OFFENDER CERTIFICATION IS PART OF THE JUDGMENT OF CONVICTION AND MUST BE CHALLENGED ON APPEAL FROM THE JUDGMENT, NOT IN A SORA RISK-LEVEL PROCEEDING)/SORA (SEX OFFENDER CERTIFICATION IS PART OF THE JUDGMENT OF CONVICTION AND MUST BE CHALLENGED ON APPEAL FROM THE JUDGMENT, NOT IN A SORA RISK-LEVEL PROCEEDING)

/

HEALTH INSURANCE CARRIER WHICH ERRONEOUSLY PAID INJURED PARTY’S NO-FAULT BENEFITS CAN NOT RECOVER FROM THE NO-FAULT CARRIER.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a two-judge dissenting opinion, determined Aetna, the health insurance carrier which erroneously paid the injured party's (Herrera's) no-fault benefits, could not recover from Hanover, the no-fault carrier:

The applicable regulation, 11 NYCRR 65.3.11 (a) provides, in relevant part, that “an insurer shall pay benefits for any loss, other than death benefits, directly to the applicant or, . . . upon assignment by the applicant . . .shall pay benefits directly to providers of health care services. . .” … . Aetna concedes that as a health insurer it is not a “provider of health care services” as contemplated by the language of this regulation … . Aetna argues, however, that it stands in Herrera's shoes because Herrera assigned her no-fault rights to it.

This argument fails for two reasons. First, since Herrera's health care providers were able to bill and recoup payment from Aetna, an assignment by Herrera of her no-fault rights had already been made, leaving her with no rights to assign to Aetna. Second, by its very language, the no-fault regulation permits only the insured — or providers of health care services by an assignment from the insured — to receive direct no-fault benefits. Because Aetna does not fall under the term “health care provider,” Herrera could not assign her rights to it.  Aetna Health Plans v Hanover Ins. Co., 2016 NY Slip Op 04658, CtApp 6-14-16

INSURANCE LAW (HEALTH INSURANCE CARRIER WHICH ERRONEOUSLY PAID INJURED PARTY'S NO-FAULT BENEFITS CAN NOT RECOVER FROM THE NO-FAULT CARRIER)/NO-FAULT INSURANCE (HEALTH INSURANCE CARRIER WHICH ERRONEOUSLY PAID INJURED PARTY'S NO-FAULT BENEFITS CAN NOT RECOVER FROM THE NO-FAULT CARRIER)

/ ,

EVIDENCE INSUFFICIENT TO DEMONSTRATE DEFENDANT COULD CONTROL WHETHER CHILDREN ENTERED OR REMAINED IN AN APARTMENT WHERE DRUGS WERE FOUND.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, over a three-judge dissenting opinion, determined the evidence was not sufficient to support defendant's conviction for permitting children to enter or remain in a place of drug activity (unlawfully dealing with a child). Defendant was an occasional guest in the apartment where mother and her children resided. The Court of Appeals held that the People did not demonstrate a relationship between defendant and the children or the apartment such that defendant could control whether children were allowed to enter or remain:

… [W]e hold that to establish that a defendant permitted a child to enter or remain in a particular place, premises, or establishment, under Penal Law § 260.20 (1), the People must show that defendant's relation to the child or to the place, premises or establishment was of such a kind that defendant had some ability to control the child, so as to permit the child to enter or remain in the place in question. Moreover, a mere ability to notify authorities does not constitute such ability to control, or the statute might apply to anyone who comes into contact with a child entering or remaining in one of the proscribed places. People v Berry, 2016 NY Slip Op 04656, CtApp 6-14-16

CRIMINAL LAW (EVIDENCE INSUFFICIENT TO DEMONSTRATE DEFENDANT COULD CONTROL WHETHER CHILDREN ENTERED OR REMAINED IN AN APARTMENT WHERE DRUGS WERE FOUND)/EVIDENCE (CRIMINAL LAW, EVIDENCE INSUFFICIENT TO DEMONSTRATE DEFENDANT COULD CONTROL WHETHER CHILDREN ENTERED OR REMAINED IN AN APARTMENT WHERE DRUGS WERE FOUND)/UNLAWFULLY DEALING WITH A CHILD (EVIDENCE INSUFFICIENT TO DEMONSTRATE DEFENDANT COULD CONTROL WHETHER CHILDREN ENTERED OR REMAINED IN AN APARTMENT WHERE DRUGS WERE FOUND)/CONTROLLED SUBSTANCES (UNLAWFULLY DEALING WITH A CHILD, EVIDENCE INSUFFICIENT TO DEMONSTRATE DEFENDANT COULD CONTROL WHETHER CHILDREN ENTERED OR REMAINED IN AN APARTMENT WHERE DRUGS WERE FOUND)

/ ,

SHACKLES, QUESTIONS ABOUT A PENDING INDICTMENT, AND FAILURE TO INFORM THE GRAND JURY OF A WITNESS REQUESTED BY THE DEFENDANT WERE NOT MODE OF PROCEEDINGS ERRORS AND WERE NOT PRESERVED FOR APPEAL.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the shackling of defendant during the grand jury proceedings, the prosecutor's questions during the grand jury proceedings about a pending indictment, and the prosecutor's failure to inform the grand jury of a witness requested by the defendant, were not mode of proceedings errors. Therefore, preservation of the errors by objection was required:

Defendant argues that the preservation rule should be disregarded with respect to the shackling challenge because the prosecution inaccurately stated on the record that the Court had previously denied such a challenge when he sought to move to dismiss the indictment on that basis. No circumstances excuse the preservation requirement: defense counsel was present during the Grand Jury proceeding while defendant was shackled. In any event, the failure to make an adequate showing on the record of the need for restraints does not constitute an unwaivable mode of proceedings error … . …

Defendant made no attempt to preserve his challenge to the prosecution's questions before the Grand Jury of his awareness of the potential for increased penalties in an unrelated pending indictment as a result of his conviction in this matter. Such a challenge requires preservation … .

Finally, defendant's challenge to the indictment based on the prosecution's failure to inform the Grand Jury about the requested witness is unpreserved. Here the record demonstrates that before defense counsel was relieved, he likely knew of the fact that the requested witness had not actually testified and was discussing the matter with the prosecution. Defendant relieved counsel before he could fully address the issue with the court, and defendant and his legal advisor, who were aware of and had every incentive to follow up and seek to preserve an objection on this basis, did not do so. Moreover, any error does not rise to the level of a mode of proceedings error. People v Griggs, 2016 NY Slip Op 04655, CtApp 6-14-16

CRIMINAL LAW (SHACKLES, QUESTIONS ABOUT A PENDING INDICTMENT, AND FAILURE TO INFORM THE GRAND JURY OF A WITNESS REQUESTED BY THE DEFENDANT WERE NOT MODE OF PROCEEDINGS ERRORS AND WERE NOT PRESERVED FOR APPEAL)/APPEALS (CRIMINAL LAW, SHACKLES, QUESTIONS ABOUT A PENDING INDICTMENT, AND FAILURE TO INFORM THE GRAND JURY OF A WITNESS REQUESTED BY THE DEFENDANT WERE NOT MODE OF PROCEEDINGS ERRORS AND WERE NOT PRESERVED FOR APPEAL)/MODE OF PROCEEDINGS ERRORS (SHACKLES, QUESTIONS ABOUT A PENDING INDICTMENT, AND FAILURE TO INFORM THE GRAND JURY OF A WITNESS REQUESTED BY THE DEFENDANT WERE NOT MODE OF PROCEEDINGS ERRORS AND WERE NOT PRESERVED FOR APPEAL)

/

DEFENSE COUNSEL’S REMARK (THAT SHOULD BE FINE) IN RESPONSE TO THE COURT’S INDICATION THAT COURT CONGESTION REQUIRED A LONGER ADJOURNMENT THAN DEFENSE COUNSEL REQUESTED WAS NOT EXPRESS CONSENT TO THE LONGER ADJOURNMENT, INDICTMENT DISMISSED ON SPEEDY TRIAL GROUNDS.

The Court of Appeals, in a full-fledged opinion by Judge Stein, reversing the Appellate Division, determined defense counsel did not expressly consent to an adjournment which the court imposed because of court congestion. When the court stated the adjourned date, defense counsel said “that should be fine:”

This Court has held that “[a]djournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay” … . Such consent does not arise by counsel merely indicating that a date suggested by the court is convenient. Thus, a defense counsel's ambiguous comment such as “[t]hat should be fine” when the court proposes a date is not sufficient to constitute clear consent to defendant being charged with the entire adjournment, including time necessitated by the court's calendar. Rather, such a generic statement likely signals nothing more than counsel's availability on a proposed date after the court has indicated that it could not accommodate the date requested by defense counsel when, in the first instance, the adjournment was “precipitated by the People's failure to be ready for trial” … .

… [T]he People bear the burden of establishing which time periods should be excluded from the statutory six months, with no burden being placed on the defendant … . The general rule — that the People should be charged with pre-readiness delays caused by court congestion … — is premised on the idea that such delays do not inhibit the People from declaring readiness in writing, through an off-calendar statement … . That reasoning applies equally well to any portion of a pre-readiness adjournment that is associated with court congestion, regardless of which party is chargeable with the remaining portion or portions of that adjournment. Here, the People could have filed an off-calendar statement of readiness at any time to stop the speedy trial clock, but they never did so. If the People were unsure of whether defense counsel's statement was an indication of consent to the entire period of the adjournment, they could have asked for clarification on the record; again, the People did not do so. Because the People did not meet their burden, Supreme Court erred to the extent it failed to charge the People with the 16 extra days …, which the court, itself, requested. Because those 16 days put the People over the statutory limit, defendant's CPL 30.30 motion should have been granted and the indictment should have been dismissed. People v Barden, 2016 NY Slip Op 04659, CtApp 6-14-16

CRIMINAL LAW (DEFENSE COUNSEL'S REMARK (THAT WOULD BE FINE) IN RESPONSE TO THE COURT'S INDICATION THAT COURT CONGESTION REQUIRED A LONGER ADJOURNMENT THAN DEFENSE COUNSEL REQUESTED WAS NOT EXPRESS CONSENT TO THE LONGER ADJOURNMENT, INDICTMENT DISMISSED ON SPEEDY TRIAL GROUNDS)/SPEEDY TRIAL (DEFENSE COUNSEL'S REMARK (THAT WOULD BE FINE) IN RESPONSE TO THE COURT'S INDICATION THAT COURT CONGESTION REQUIRED A LONGER ADJOURNMENT THAN DEFENSE COUNSEL REQUESTED WAS NOT EXPRESS CONSENT TO THE LONGER ADJOURNMENT, INDICTMENT DISMISSED ON SPEEDY TRIAL GROUNDS)

/

INVESTIGATING A MALFUNCTION CONSTITUTES COVERED REPAIR UNDER LABOR LAW 240(1).

The Fourth Department, over a two-justice dissent, determined plaintiff was covered by Labor Law 240(1) when he was diagnosing a problem on a cell tower, which constituted “repair” under the statute. The Fourth Department further concluded the defendants raised a question of fact about whether plaintiff had been provided with sufficient safety equipment (the dissent argued defendants had not raised a question of fact on that issue):

Here, plaintiff testified that he never performed preventive maintenance on the towers, and that he and his coworkers were dispatched to a tower only when something was in need of repair … . Indeed, plaintiff's submissions establish that an item on the tower was malfunctioning prior to commencement of the work, and that plaintiff was injured after climbing approximately 180 feet to conduct an investigation into the cause of the alarm and to remedy the malfunction … . Where, as here, ” a person is investigating a malfunction, . . . efforts in furtherance of that investigation are protected activities under Labor Law § 240 (1)' ” … . Cullen v AT&T, Inc., 2016 NY Slip Op 04503, 4th Dept 6-10-16

LABOR LAW-CONSTRUCTION LAW (INVESTIGATING A MALFUNCTION CONSTITUTES COVERED REPAIR UNDER LABOR LAW 240(1))/REPAIR (LABOR LAW, INVESTIGATING A MALFUNCTION CONSTITUTES COVERED REPAIR UNDER LABOR LAW 240(1))

/ ,

FAILURE TO PRESERVE SURVEILLANCE VIDEOS TRIGGERED NEED FOR ADVERSE INFERENCE JURY INSTRUCTION.

The Fourth Department, reversing the conviction, over a concurrence, determined defendant was entitled to an adverser inference jury instruction based upon the failure to preserve surveillance videos:

We agree with defendant that the court erred in refusing to give an adverse inference charge based on the People's failure to preserve surveillance tapes … . Defendant used reasonable diligence in requesting those tapes, which captured “evidence that [was] reasonably likely to be of material importance” …, i.e., a video in the area where the crime occurred, from cameras operated by the City of Rochester Police Department.

We respectfully disagree with our concurring colleague that the State's duty to preserve surveillance videos is not triggered until a request has been made by the defendant. People v Butler, 2016 NY Slip Op 04512, 4th Dept 6-10-16

CRIMINAL LAW (FAILURE TO PRESERVE SURVEILLANCE VIDEOS TRIGGERED NEED FOR ADVERSE INFERENCE JURY INSTRUCTION)/EVIDENCE (FAILURE TO PRESERVE SURVEILLANCE VIDEOS TRIGGERED NEED FOR ADVERSE INFERENCE JURY INSTRUCTION)/ADVERSE INFERENCE JURY INSTRUCTION (CRIMINAL LAW, FAILURE TO PRESERVE SURVEILLANCE VIDEOS TRIGGERED NEED FOR ADVERSE INFERENCE JURY INSTRUCTION)/JURY INSTRUCTIONS (CRIMINAL LAW, FAILURE TO PRESERVE SURVEILLANCE VIDEOS TRIGGERED NEED FOR ADVERSE INFERENCE JURY INSTRUCTION)

/ ,

RODRIGUEZ HEARING NECESSARY TO DETERMINE WHETHER SINGLE PHOTO IDENTIFICATION WAS CONFIRMATORY.

The Fourth Department, remitting the case, determined a Rodriguez hearing was necessary to determine whether a witness’s single photo identification of the defendant was confirmatory:

We agree with defendant that, during the suppression hearing, the court erred in precluding defendant from cross-examining the police investigator on the issue whether “Witness #1” was sufficiently familiar with defendant in order to render the single photo identification of defendant by that witness “merely confirmatory” … . Although the court conducted a Wade hearing, which ordinarily eliminates the need for a Rodriguez hearing … , we conclude that the court’s error during the suppression hearing renders a Rodriguez hearing necessary in this case … . We therefore hold the case, reserve decision, and remit the matter to Supreme Court for a hearing to determine whether the identification by the subject witness was truly confirmatory in nature … and, if the court determines that the identification was not confirmatory, it must further determine whether the single photo identification procedure employed with the subject witness was unduly suggestive … . People v Hoffman, 2016 NY Slip Op 04508, 4th Dept 6-10-16

CRIMINAL LAW (RODRIGUEZ HEARING NECESSARY TO DETERMINE WHETHER SINGLE PHOTO IDENTIFICATION WAS CONFIRMATORY)/EVIDENCE (CRIMINAL LAW, RODRIGUEZ HEARING NECESSARY TO DETERMINE WHETHER SINGLE PHOTO IDENTIFICATION WAS CONFIRMATORY)/IDENTIFICATION (CRIMINAL LAW, RODRIGUEZ HEARING NECESSARY TO DETERMINE WHETHER SINGLE PHOTO IDENTIFICATION WAS CONFIRMATORY)

/ ,

ALTHOUGH EVIDENCE OF PRIOR THREATS AGAINST THE VICTIM MAY BE ADMISSIBLE UNDER MOLINEUX, SUCH EVIDENCE MUST BE IN ADMISSIBLE FORM, HERE THE HEARSAY EVIDENCE OF PRIOR THREATS SHOULD NOT HAVE BEEN ADMITTED FOR THE TRUTH OF THE MATTERS ASSERTED.

The Fourth Department, reversing defendant's conviction in this 30-year-old domestic murder case, determined hearsay evidence of threats allegedly made by the defendant against the victim were improperly admitted for the truth of the matters asserted. While evidence of threats made to the victim may be admissible under Molineux, such evidence must be in admissible form:

Citing Molineux and other like cases, including People v Alvino (71 NY2d 233), the People argue that evidence of defendant's prior threats and physical abuse of the victim were highly relevant for various nonhearsay purposes, such as establishing background information, revealing the state of mind of the victim and defendant, and demonstrating his motive and intent to kill the victim. As defendant correctly points out, however, there is no Molineux exception to the rule against hearsay. It may be true that evidence that defendant beat and threatened to kill the victim is admissible under a Molineux theory, but such evidence must still be in admissible form. For instance, a witness could testify that he or she witnessed defendant assault the victim, or heard defendant threaten the victim. That is not hearsay. It is hearsay, however, for a witness to testify that someone else told him or her that defendant beat or threatened the victim. People v Meadow, 2016 NY Slip Op 04505, 4th Dept 6-10-16

CRIMINAL LAW (ALTHOUGH EVIDENCE OF PRIOR THREATS AGAINST THE VICTIM MAY BE ADMISSIBLE UNDER MOLINEUX, SUCH EVIDENCE MUST BE IN ADMISSIBLE FORM, HERE THE HEARSAY EVIDENCE OF PRIOR THREATS SHOULD NOT HAVE BEEN ADMITTED FOR THE TRUTH OF THE MATTERS ASSERTED)/EVIDENCE (CRIMINAL LAW, ALTHOUGH EVIDENCE OF PRIOR THREATS AGAINST THE VICTIM MAY BE ADMISSIBLE UNDER MOLINEUX, SUCH EVIDENCE MUST BE IN ADMISSIBLE FORM, HERE THE HEARSAY EVIDENCE OF PRIOR THREATS SHOULD NOT HAVE BEEN ADMITTED FOR THE TRUTH OF THE MATTERS ASSERTED)/PRIOR CRIMES AND BAD ACTS (ALTHOUGH EVIDENCE OF PRIOR THREATS AGAINST THE VICTIM MAY BE ADMISSIBLE UNDER MOLINEUX, SUCH EVIDENCE MUST BE IN ADMISSIBLE FORM, HERE THE HEARSAY EVIDENCE OF PRIOR THREATS SHOULD NOT HAVE BEEN ADMITTED FOR THE TRUTH OF THE MATTERS ASSERTED)/MOLINEUX EVIDENCE (ALTHOUGH EVIDENCE OF PRIOR THREATS AGAINST THE VICTIM MAY BE ADMISSIBLE UNDER MOLINEUX, SUCH EVIDENCE MUST BE IN ADMISSIBLE FORM, HERE THE HEARSAY EVIDENCE OF PRIOR THREATS SHOULD NOT HAVE BEEN ADMITTED FOR THE TRUTH OF THE MATTERS ASSERTED)

/ ,

DEFENDANT ENTITLED TO A WADE HEARING TO DETERMINE THE RELIABILITY, AS OPPOSED TO SUGGESTIVENESS, OF AN IDENTIFICATION.

The Fourth Department, reversing the conviction, over a concurrence, determined defendant was entitled to a Wade hearing to determine the reliability, as opposed to the suggestiveness, of an identification:

Here, following the drug transaction, the undercover officer did not observe defendant again until the trial, which was approximately a year and a half after the transaction. That lapse of time is in stark contrast to the typical situation where an undercover officer identifies the arrestee at the police station contemporaneously with the drug transaction … .

While we recognize that a “Wade hearing” is often linked, nearly exclusively, with the concept of “suggestiveness,” we conclude that a defendant is entitled to CPL 710.30 (1) (b) notice and the opportunity to move to suppress identification testimony pursuant to CPL 710.60 in order to test the reliability of such testimony … . While “suggestiveness” may play an important role in the reliability analysis, it is not the exclusive criterion. The list of criteria involved in making a reliability determination may include, but is not limited to: the lapse of time between the criminal transaction and the arrest, the opportunity to observe the suspect during the transaction, the duration of the interaction, and the facts and circumstances of the interaction with the suspect. It is well settled that “the mere labelling of an identification as confirmatory' will not obviate the need for Wade hearings. Case-by-case analyses of the facts and circumstances in each case remains necessary” … . “Comprehensive analysis, not superficial categorization, ultimately governs” … . People v Reeves, 2016 NY Slip Op 04502, 4th Dept 6-10-16

CRIMINAL LAW (DEFENDANT ENTITLED TO A WADE HEARING TO DETERMINE THE RELIABILITY, AS OPPOSED TO SUGGESTIVENESS, OF AN IDENTIFICATION)/EVIDENCE (CRIMINAL LAW, DEFENDANT ENTITLED TO A WADE HEARING TO DETERMINE THE RELIABILITY, AS OPPOSED TO SUGGESTIVENESS, OF AN IDENTIFICATION)/IDENTIFICATION (CRIMINAL LAW, DEFENDANT ENTITLED TO A WADE HEARING TO DETERMINE THE RELIABILITY, AS OPPOSED TO SUGGESTIVENESS, OF AN IDENTIFICATION)/WADE HEARING DEFENDANT ENTITLED TO A WADE HEARING TO DETERMINE THE RELIABILITY, AS OPPOSED TO SUGGESTIVENESS, OF AN IDENTIFICATION)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy