You are here: / FATHER’S PETITION TO MODIFY THE VISITATION ORDER, WHICH ALLOWED VISITATION...

Search Results

/

FATHER’S PETITION TO MODIFY THE VISITATION ORDER, WHICH ALLOWED VISITATION AS MUTUALLY AGREED, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, FATHER ALLEGED THE MUTUALLY AGREED VISITATION HAD BECOME UNTENABLE (FOURTH DEPT).

The Fourth Department determined father’s motion to modify visitation should not have been denied without a hearing. The existing order allowed father visitation under mutually agreed circumstance. Father alleged mother had prohibited visitation for three years:

Although “[a] court cannot delegate its authority to determine visitation to either a parent or a child” … , it may order visitation as the parties may mutually agree so long as such an arrangement is not untenable under the circumstances … . Where, as here, a prior order provides for visitation as the parties may mutually agree, a party who is unable to obtain visitation pursuant to that order “may file a petition seeking to enforce or modify the order” … .

We agree with the father that the court erred in dismissing the modification petition without a hearing inasmuch as the father made “a sufficient evidentiary showing of a change in circumstances to require a hearing”… . Contrary to the mother’s contention, upon giving the petition a liberal construction, accepting the facts alleged therein as true, and according the father the benefit of every favorable inference… , we conclude that the father adequately alleged a change of circumstances insofar as the visitation arrangement based upon mutual agreement was no longer tenable given that the mother purportedly denied the father any contact with the child … . In addition, we note that, although the father is now incarcerated, there is a rebuttable presumption that visitation is in the child’s best interests … . Matter of Kelley v Fifield, 2018 NY Slip Op 02110, Fourth Dept 3-23-18

FAMILY LAW (VISITATION, FATHER’S PETITION TO MODIFY THE VISITATION ORDER, WHICH ALLOWED VISITATION AS MUTUALLY AGREED, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, FATHER ALLEGED THE MUTUALLY AGREED VISITATION HAD BECOME UNTENABLE (FOURTH DEPT))/VISITATION (FAMILY LAW, MODIFICATION OF MUTUALLY AGREED VISITATION, FATHER’S PETITION TO MODIFY THE VISITATION ORDER, WHICH ALLOWED VISITATION AS MUTUALLY AGREED, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, FATHER ALLEGED THE MUTUALLY AGREED VISITATION HAD BECOME UNTENABLE (FOURTH DEPT))

/ , ,

ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a strong two-justice dissent, affirmed defendant’s murder conviction despite the introduction of highly prejudicial evidence of unrelated crimes and defense counsel’s failure to object to that inadmissible propensity evidence. The majority decided not to address the inadmissible propensity evidence because defense counsel did not object to it (error not preserved for appeal). The majority further determined that allowing the jury to hear the inadmissible propensity evidence was a valid defense strategy (painting the admission to the charged crime and other crimes as merely tough talk):

We conclude, contrary to the view of our dissenting colleagues, that defendant received effective assistance of counsel. It is well settled that “a reviewing court must avoid confusing true ineffectiveness with mere losing tactics’ ” … . It “is not for [the] court to second-guess whether a course chosen by defendant’s counsel was the best trial strategy, or even a good one, so long as defendant was afforded meaningful representation” … . Crucially, we note that the evidence in question is the very same evidence upon which defendant relied to establish his defense at trial. The defense theory of the case, as articulated in defense counsel’s summation, was that defendant did not kill the victim; he was merely “talking tough” because he was afraid of being in jail. Indeed, as defendant told the investigators, he was just “trying to sound bigger than he really was.” Defense counsel urged the jury to find defendant’s statements unworthy of belief because defendant was frightened and “puffing.” In an effort to deflect the jury’s attention from defendant’s admissions to the charged crime, defense counsel made a deliberate choice, as a matter of trial strategy, to leave those admissions in the context of the gratuitous boasting in which they arose. Although the evidence in question would have been excludable upon a motion by defendant, we conclude that the evidence was consistent with the defense strategy. Moreover, the redaction of such material from the letter and audio recording would have highlighted defendant’s confession to the [charged] homicide. In other words, extracting defendant’s admissions from the extraneous talk that was consistent with the puffing defense would have undercut the defense theory and focused the jury’s attention on defendant’s admissions of guilt. People v Anderson, 2018 NY Slip Op 02105, Fourth Dept 3-23-18

CRIMINAL LAW (ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, UNCHARGED CRIMES, ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))/UNCHARGED CRIMES (ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))/PROPENSITY EVIDENCE (CRIMINAL LAW, UNCHARGED CRIMES, ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))/INEFFECTIVE ASSISTANCE OF COUNSEL (CRIMINAL LAW, ALLOWING THE JURY TO HEAR INADMISSIBLE EVIDENCE OF DEFENDANT’S ADMISSIONS TO THE COMMISSION OF UNRELATED CRIMES WAS DEEMED A VALID DEFENSE STRATEGY, DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR LETTING THE EVIDENCE COME IN, STRONG TWO-JUSTICE DISSENT (FOURTH DEPT))

/ ,

DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA BASED ON THE PEOPLE’S FAILURE TO TURN OVER BRADY MATERIAL, A DEFENDANT DOES NOT WAIVE THE RIGHT TO ASSERT A BRADY VIOLATION BY PLEADING GUILTY (OVERRULING PRECEDENT) (FOURTH DEPT).

The Fourth Department determined defendant was entitled to a hearing on his motion to withdraw his guilty plea based upon the People’s failure to disclose the autopsy and toxicology reports relating to the two persons on a motorcycle who died after colliding with defendant’s truck. The reports indicated high blood alcohol levels. The Fourth Department noted that the reports constituted Brady material and held that a defendant does not waive a Brady violation by pleading guilty. Prior Fourth Department decisions to the contrary are no longer to be followed:

… [W]e reject the People’s contention that defendant forfeited his right to raise the alleged Brady violation by pleading guilty … . Brady is premised upon considerations of fairness and due process … , and we conclude that it would undermine the prosecutor’s Brady obligations if a defendant is deemed to have forfeited his or her right to raise an alleged Brady violation by entering a plea without the knowledge that the People possessed exculpatory evidence… . To the extent that our prior decisions hold that a defendant, by pleading guilty, forfeits the right to raise an alleged Brady violation (see e.g. People v Brockway, 148 AD3d 1815, 1816 [4th Dept 2017]; People v Chant, 140 AD3d 1645, 1648 [4th Dept 2016], lv denied 28 NY3d 970 [2016]; People v Chinn, 104 AD3d 1167, 1168 [4th Dept 2013], lv denied 21 NY3d 1014 [2013]), they are no longer to be followed. …

We reject the People’s contention that the reports do not contain exculpatory material and that they were thus under no obligation to disclose them. Rather, we agree with defendant that evidence of the motorcycle operator’s intoxication is relevant with respect to the cause of the fatal accident and defendant’s culpability therefor and, here, the toxicology report states that two blood samples obtained from the motorcycle operator indicated blood alcohol concentrations of .081 and .098. Moreover, the exculpatory value of that evidence is enhanced by defendant’s initial account of the accident to State Police officers at the scene, wherein defendant asserted that the accident occurred when the motorcycle was passing another vehicle and suddenly appeared “right in front of him.” People v Wilson, 2018 NY Slip Op 02106, Fourth Dept 3-23-18

CRIMINAL LAW (DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA BASED ON THE PEOPLE’S FAILURE TO TURN OVER BRADY MATERIAL, A DEFENDANT DOES NOT WAIVE THE RIGHT TO ASSERT A BRADY VIOLATION BY PLEADING GUILTY (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA BASED ON THE PEOPLE’S FAILURE TO TURN OVER BRADY MATERIAL, A DEFENDANT DOES NOT WAIVE THE RIGHT TO ASSERT A BRADY VIOLATION BY PLEADING GUILTY (FOURTH DEPT))/BRADY MATERIAL  (CRIMINAL LAW, DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA BASED ON THE PEOPLE’S FAILURE TO TURN OVER BRADY MATERIAL, A DEFENDANT DOES NOT WAIVE THE RIGHT TO ASSERT A BRADY VIOLATION BY PLEADING GUILTY (FOURTH DEPT))/GUILTY PLEA, MOTION TO WITHDRAW (BRADY VIOLATION DEFENDANT ENTITLED TO A HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY PLEA BASED ON THE PEOPLE’S FAILURE TO TURN OVER BRADY MATERIAL, A DEFENDANT DOES NOT WAIVE THE RIGHT TO ASSERT A BRADY VIOLATION BY PLEADING GUILTY (FOURTH DEPT))

/ ,

HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a hearing should have been held on defendant’s motion to vacate his conviction, even though the issues were raised or could have been raised in a prior motion to vacate. The defendant presented evidence that defendant’s cell phone was pinged, not defendant’s girlfriend’s cell phone. Therefore defendant had standing to challenge the pinging of the cell phone. The defendant’s motion raised the issue whether a police officer lied when he testified the girlfriend’s cell phone was pinged, and whether evidence that the girlfriend’s phone was broken at the relevant time (presented to the grand jury) was withheld from the defendant:

… [D]efendant submitted police reports wherein the officer who had testified at the suppression hearing (testifying officer) stated that law enforcement officers were “pinging” a phone that belonged to defendant. Defendant further submitted affidavits from the minor [his girlfriend] and her grandmother, who had sought the aid of law enforcement, indicating that the minor’s phone had broken days before the police action and that they had informed the testifying officer and prosecutor of that fact either the day on which the police pinged the cell phone or, at the very least, at some date before the suppression hearing. Indeed, the minor averred that she had testified before the grand jury that her phone had broken and that defendant’s cell phone was the only phone that she and defendant had used during the relevant time period. Defendant contends that the minor’s grand jury testimony constituted exculpatory evidence that was not disclosed to the defense despite a specific request therefor.

It is well settled that prosecutors have the duty “not only to disclose exculpatory or impeaching evidence but also to correct the knowingly false or mistaken material testimony of a prosecution witness”… . Defendant has submitted credible documentary evidence establishing that the testifying officer’s testimony at the suppression hearing was false and that the prosecutor knew or should have known that the testimony was false … . Moreover, defendant has submitted credible documentary evidence establishing that the prosecutor failed to disclose material, exculpatory evidence … . People v Reed, 2018 NY Slip Op 02068, Fourth Dept 3-23-18

CRIMINAL LAW (HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/VACATE CONVICTION, MOTION TO (HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/BRADY MATERIAL (CRIMINAL LAW, HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/FALSE TESTIMONY (CRIMINAL LAW, MOTION TO VACATE CONVICTION, HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/POLICE OFFICERS (CRIMINAL LAW, FALSE TESTIMONY, MOTION TO VACATE CONVICTION, HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))/PROSECUTORS (FALSE TESTIMONY, MOTION TO VACATE CONVICTION, HEARING REQUIRED ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION EVEN THOUGH THE ISSUES WERE OR COULD HAVE BEEN RAISED IN A PRIOR MOTION TO VACATE, DEFENDANT RAISED QUESTIONS WHETHER FALSE TESTIMONY WAS GIVEN BY A POLICE OFFICER AND WHETHER EXCULPATORY EVIDENCE WAS WITHHELD FROM THE DEFENSE (FOURTH DEPT))

/ , ,

DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT).

The Fourth Department determined Supreme Court should not have required defendant to proceed pro se on the People’s motion to compel him to submit to a buccal swab for DNA testing:

We … agree with defendant that the court erred in requiring him to proceed pro se on the People’s motion to compel him to submit to a buccal swab for DNA testing … . Contrary to the People’s contention, the court’s error cannot be deemed harmless, inasmuch as the evidence apart from the DNA evidence is not overwhelming, and there is a reasonable possibility that the error contributed to the conviction … . We therefore hold the case, reserve decision, and remit the matter to Supreme Court for further proceedings on the People’s motion following the assignment of counsel to represent defendant thereon. People v Pressley, 2018 NY Slip Op 02114, Fourth Dept 3-23-18

CRIMINAL LAW (ATTORNEYS, DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, BUCCAL SWAB, DNA, DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT))/BUCCAL SWAB (CRIMINAL LAW, DNA, DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT))/DNA (CRIMINAL LAW, BUCCAL SWAB, ATTORNEYS, DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT))

/ ,

DEFENDANT’S STATEMENTS DURING THE PLEA COLLOQUY DENYING THAT HE SOLD COCAINE AND DESCRIBING THE PROCEEDINGS AS CORRUPT WARRANTED FURTHER INQUIRY BY THE COURT, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ISSUE FOR APPEAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction by guilty plea, determined defendant’s statements denying he sold cocaine and describing the proceedings as corrupt mandated further inquiry by the court. The failure to preserve the error by a postallocution motion did not, under the facts, prevent the court from reaching the issue on appeal:

During the plea colloquy, defendant admitted to possessing cocaine with the intent to sell, but he denied that he sold the cocaine. After County Court stated that it would not accept his plea, it again asked defendant whether he sold the cocaine, and defendant answered “yes.” Defendant informed that court, however, that he was pleading guilty only because he could “no longer go forward to proceed to trial with the level of corruption and maliciousness being used to prosecute” him. The court nevertheless accepted his plea.

Although defendant never moved to withdraw his guilty plea, this case falls within the exception to the preservation requirement that was carved out by the Court of Appeals in People v Lopez (71 NY2d 662, 666 [1988]), which permits appellate review of the sufficiency of a plea allocution despite the absence of such a motion, where the recitation of facts elicited during the plea allocution “clearly casts significant doubt upon the defendant’s guilt or otherwise calls into question the voluntariness of the plea.” Under such circumstances, if the court fails to conduct “further inquiry to ensure that [the] defendant understands the nature of the charge and that the plea is intelligently entered . . . , the defendant may challenge the sufficiency of the allocution on direct appeal, notwithstanding that a formal postallocution motion was not made” … . People v Daniels, 2018 NY Slip Op 02094, Fourth Dept 3-23-18

CRIMINAL LAW (DEFENDANT’S STATEMENTS DURING THE PLEA COLLOQUY DENYING THAT HE SOLD COCAINE AND DESCRIBING THE PROCEEDINGS AS CORRUPT WARRANTED FURTHER INQUIRY BY THE COURT, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ISSUE FOR APPEAL (FOURTH DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT’S STATEMENTS DURING THE PLEA COLLOQUY DENYING THAT HE SOLD COCAINE AND DESCRIBING THE PROCEEDINGS AS CORRUPT WARRANTED FURTHER INQUIRY BY THE COURT, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ISSUE FOR APPEAL (FOURTH DEPT))/PLEA COLLOQUY (CRIMINAL LAW, DEFENDANT’S STATEMENTS DURING THE PLEA COLLOQUY DENYING THAT HE SOLD COCAINE AND DESCRIBING THE PROCEEDINGS AS CORRUPT WARRANTED FURTHER INQUIRY BY THE COURT, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ISSUE FOR APPEAL (FOURTH DEPT))/COLLOQUY (CRIMINAL LAW, DEFENDANT’S STATEMENTS DURING THE PLEA COLLOQUY DENYING THAT HE SOLD COCAINE AND DESCRIBING THE PROCEEDINGS AS CORRUPT WARRANTED FURTHER INQUIRY BY THE COURT, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ISSUE FOR APPEAL (FOURTH DEPT))/ALLOCUTION (CRIMINAL LAW, DEFENDANT’S STATEMENTS DURING THE PLEA COLLOQUY DENYING THAT HE SOLD COCAINE AND DESCRIBING THE PROCEEDINGS AS CORRUPT WARRANTED FURTHER INQUIRY BY THE COURT, CONVICTION REVERSED DESPITE FAILURE TO PRESERVE THE ISSUE FOR APPEAL (FOURTH DEPT))

/ ,

MATTER MUST BE SENT BACK FOR RESENTENCING, DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL, BECAUSE THE LENGTH OF PROBATION WAS NOT SPECIFIED (FOURTH DEPT).

The Fourth Department noted that the matter must be sent back for resentencing, despite the failure to raise the issue on appeal, because the length of probation was not specified:

Although not raised by the parties, we note that the judgment must be modified by vacating the sentence and the matter must be remitted to County Court for resentencing because the court did not specify the length of the term of probation … . People v Petrangelo, 2018 NY Slip Op 02074, Fourth Dept 3-23-18

CRIMINAL LAW (SENTENCING, MATTER MUST BE SENT BACK FOR RESENTENCING, DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL, BECAUSE THE LENGTH OF PROBATION WAS NOT SPECIFIED (FOURTH DEPT))/SENTENCING (MATTER MUST BE SENT BACK FOR RESENTENCING, DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL, BECAUSE THE LENGTH OF PROBATION WAS NOT SPECIFIED (FOURTH DEPT))/APPEALS (CRIMINAL LAW, SENTENCING,  MATTER MUST BE SENT BACK FOR RESENTENCING, DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL, BECAUSE THE LENGTH OF PROBATION WAS NOT SPECIFIED (FOURTH DEPT))/PROBATION (CRIMINAL LAW, SENTENCING,  MATTER MUST BE SENT BACK FOR RESENTENCING, DESPITE FAILURE TO RAISE THE ISSUE ON APPEAL, BECAUSE THE LENGTH OF PROBATION WAS NOT SPECIFIED (FOURTH DEPT))

/ ,

PLEA TO A PURPORTEDLY AMENDED COUNT MUST BE VACATED BECAUSE THE COUNT HAD BEEN DISMISSED, WAIVER OF APPEAL INVALID DESPITE THE EXECUTION OF A WRITTEN WAIVER (FOURTH DEPT).

The Fourth Department determined the plea to attempted sex trafficking charged in an amended indictment count must be vacated because the count which was purportedly amended had been previously dismissed. The court further held that the waiver of appeal was invalid:

… [W]e conclude … that the court erred in eliciting defendant’s plea of guilty to attempted sex trafficking under the purported amended count 3 of the second indictment because of the previous dismissal of the underlying count… . Inasmuch as ” [a] valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution’ ” … , and the court lacked authority to amend a previously dismissed count and elicit defendant’s plea thereto, the judgment of conviction … must be reversed and the plea vacated … .

We agree with defendant … that his purported waiver of the right to appeal is not valid inasmuch as “the perfunctory inquiry made by [County] Court was insufficient to establish that the court engage[d] the defendant in an adequate colloquy to ensure that the waiver of the right to appeal was a knowing and voluntary choice” … . Although “[a] detailed written waiver can supplement a court’s on-the-record explanation of what a waiver of the right to appeal entails, . . . a written waiver does not, standing alone, provide sufficient assurance that the defendant is knowingly, intelligently and voluntarily giving up his or her right to appeal”… . Here, although defendant signed such a written waiver, “the record establishes that County Court did not sufficiently explain the significance of the appeal waiver or ascertain defendant’s understanding thereof” … . We thus conclude that, “despite defendant’s execution of a written waiver of the right to appeal, he did not knowingly, intelligently or voluntarily waive his right to appeal as the record fails to demonstrate a full appreciation of the consequences of such waiver” … . People v Wilson, 2018 NY Slip Op 02060, Fourth Deptp 3-23-18

CRIMINAL LAW (PLEA TO A PURPORTEDLY AMENDED COUNT MUST BE VACATED BECAUSE THE COUNT HAD BEEN DISMISSED, WAIVER OF APPEAL INVALID DESPITE THE EXECUTION OF A WRITTEN WAIVER (FOURTH DEPT))/INDICTMENTS (PLEA TO A PURPORTEDLY AMENDED COUNT MUST BE VACATED BECAUSE THE COUNT HAD BEEN DISMISSED (FOURTH DEPT))/APPEALS (CRIMINAL LAW, WAIVER OF APPEAL INVALID DESPITE THE EXECUTION OF A WRITTEN WAIVER (FOURTH DEPT))/WAIVER OF APPEAL (CRIMINAL LAW, WAIVER OF APPEAL INVALID DESPITE THE EXECUTION OF A WRITTEN WAIVER (FOURTH DEPT))

/

DEFENDANT, WHO HAD SERVED THE FULL FOUR YEARS OF HIS 1 1/3 TO FOUR YEAR SENTENCE FOR DWI, COULD NOT BE SENTENCED TO MORE PRISON TIME FOR A PROBATION VIOLATION (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant could not be sentenced to more prison time for a violation of probation in this driving while intoxicated case. Defendant had served the full four years of his 1 1/3 to 4 year sentence when he violated probation by driving while intoxicated, unlicensed operation, refusal of a breath test and operating without an ignition interlock device

[In People v Coon, 156 AD3d 105, the] [3rd] Department held that, “where [the defendant] has already served and completed the one-year definite sentence imposed for the DWI conviction, County Court was not authorized to impose an additional term of imprisonment upon his violation of the conditional discharge terms” … . In reaching that conclusion, the [3rd] Department noted that “[t]he statutory framework governing sentencing does not cover these factual circumstances,” and there were “no corresponding statutes or amendments to already existing statutes that delineated the types of sanctions that courts could impose in a case such as this one” … .

While here defendant was sentenced to an indeterminate term of imprisonment followed by probation instead of a definite jail term followed by a conditional discharge, we conclude that those distinctions are immaterial. Defendant served the maximum term of imprisonment imposed, i.e., four years on his sentence of 1⅓ to 4 years, and we conclude that he cannot be subjected to additional prison time under the guise of a sentence based on a probation or conditional discharge violation when, in fact, he was resentenced for the initial offense. People v Zirbel, 2018 NY Slip Op 02064, Fourth Dept 3-23-18

CRIMINAL LAW (DWI, SENTENCING, DEFENDANT, WHO HAD SERVED THE FULL FOUR YEARS OF HIS 1 1/3 TO FOUR YEAR SENTENCE FOR DWI, COULD NOT BE SENTENCED TO MORE PRISON TIME FOR A PROBATION VIOLATION (FOURTH DEPT))/SENTENCING (DWI, DEFENDANT, WHO HAD SERVED THE FULL FOUR YEARS OF HIS 1 1/3 TO FOUR YEAR SENTENCE FOR DWI, COULD NOT BE SENTENCED TO MORE PRISON TIME FOR A PROBATION VIOLATION (FOURTH DEPT))/DRIVING WHILE INTOXICATED (SENTENCING, DEFENDANT, WHO HAD SERVED THE FULL FOUR YEARS OF HIS 1 1/3 TO FOUR YEAR SENTENCE FOR DWI, COULD NOT BE SENTENCED TO MORE PRISON TIME FOR A PROBATION VIOLATION (FOURTH DEPT))/PROBATION, VIOLATION OF (DWI, SENTENCING, DEFENDANT, WHO HAD SERVED THE FULL FOUR YEARS OF HIS 1 1/3 TO FOUR YEAR SENTENCE FOR DWI, COULD NOT BE SENTENCED TO MORE PRISON TIME FOR A PROBATION VIOLATION (FOURTH DEPT))

/

ALTHOUGH THE PEOPLE STATED THERE WERE NO IDENTIFICATION PROCEDURES REQUIRING NOTICE TO THE DEFENDANT, THE EVIDENCE INDICATES THERE MAY HAVE BEEN IDENTIFICATION PROCEDURES AT THE POLICE STATION BY A POLICE OFFICER, CASE SENT BACK FOR A HEARING (FOURTH DEPT).

The Fourth Department, sending the case back to Supreme Court, found that a hearing was necessary to determine whether the police officers engaged in identification procedures at the police station and, if so, whether the identifications were confirmatory. The People did not notify the defendant of any identification procedures in their CPL 710.30 notice:

… [T]he People provided a blank CPL 710.30 notice to defendant and, in response to that part of his omnibus motion seeking preclusion, asserted that “[t]here were no identification procedures which would require a CPL 710.30 notice.” The record before us establishes … that the officer and his partner may have engaged in showup identification procedures undertaken “at the deliberate direction of the State” that required notice pursuant to CPL 710.30 … . The evidence at the suppression hearing established that defendant fled from the front passenger seat of the parked vehicle and was unsuccessfully pursued by the officer, and that the officer knew defendant was apprehended because the officer saw defendant after he was later taken into custody by a third officer. The record further indicates, and the People do not dispute, that, after defendant was arrested and brought to the police station by the third officer at the officer’s direction, the officer identified defendant as the front seat passenger who fled from the parked vehicle. …

Although the People contend that any police station identifications were merely confirmatory, and it appears from the record that the officer and his partner may have been familiar with defendant prior to the subject incident, we are precluded from affirming on that ground inasmuch as the court did not rule on that issue … . People v Davis, 2018 NY Slip Op 02051, Fourth Dept 3-23-18

CRIMINAL LAW (ALTHOUGH THE PEOPLE STATED THERE WERE NO IDENTIFICATION PROCEDURES REQUIRING NOTICE TO THE DEFENDANT, THE EVIDENCE INDICATES THERE MAY HAVE BEEN IDENTIFICATION PROCEDURES AT THE POLICE STATION BY A POLICE OFFICER, CASE SENT BACK FOR A HEARING (FOURTH DEPT))/IDENTIFICATION (CRIMINAL LAW, ALTHOUGH THE PEOPLE STATED THERE WERE NO IDENTIFICATION PROCEDURES REQUIRING NOTICE TO THE DEFENDANT, THE EVIDENCE INDICATES THERE MAY HAVE BEEN IDENTIFICATION PROCEDURES AT THE POLICE STATION BY A POLICE OFFICER, CASE SENT BACK FOR A HEARING (FOURTH DEPT))/710.30 NOTICE (ALTHOUGH THE PEOPLE STATED THERE WERE NO IDENTIFICATION PROCEDURES REQUIRING NOTICE TO THE DEFENDANT, THE EVIDENCE INDICATES THERE MAY HAVE BEEN IDENTIFICATION PROCEDURES AT THE POLICE STATION BY A POLICE OFFICER, CASE SENT BACK FOR A HEARING (FOURTH DEPT))/PRECLUSION (CRIMINAL LAW, IDENTIFICATION, ALTHOUGH THE PEOPLE STATED THERE WERE NO IDENTIFICATION PROCEDURES REQUIRING NOTICE TO THE DEFENDANT, THE EVIDENCE INDICATES THERE MAY HAVE BEEN IDENTIFICATION PROCEDURES AT THE POLICE STATION BY A POLICE OFFICER, CASE SENT BACK FOR A HEARING (FOURTH DEPT))

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