APPELLATE COURT MAY VACATE A JUDGMENT OR ORDER IN SOME CIRCUMSTANCES, EVEN WHERE THE APPEAL IS MOOT.

The Second Department explained when an order of judgment can be vacated by an appellate court, even though the appeal has been rendered moot:

“While it is the general policy of New York courts to simply dismiss an appeal which has been rendered academic, vacatur of an order or judgment on appeal may be an appropriate exercise of discretion where necessary in order to prevent a judgment which is unreviewable for mootness from spawning any legal consequences or precedent'” … . Markowits v Friedman, 2016 NY Slip Op 07933, 2nd Dept 11-23-16

APPEALS (CIVIL, APPELLATE COURT MAY VACATE A JUDGMENT OR ORDER IN SOME CIRCUMSTANCES, EVEN WHERE THE APPEAL IS MOOT)

,

STANDARD OF REVIEW IN COURT OF APPEALS FOR MIXED QUESTION OF LAW AND FACT REQUIRED AFFIRMANCE OF DENIAL OF SUPPRESSION MOTION.

The Court of Appeals, affirming the denial of a suppression motion, explained the standard of review in the Court of Appeals for mixed questions of law and fact:

… [P]olice were dispatched … after an anonymous caller informed a 911 operator that two black males were walking back and forth … carrying silver colored guns on their waists. One individual was described as wearing a white t-shirt with red letters. The other was wearing a black t-shirt.

Two uniformed police officers, each driving a marked patrol car, responded to a radio dispatch concerning the 911 call. The first officer to arrive observed two black males walking side-by-side … . One male had a black t-shirt and the other male wore a two-toned blue jacket, over what appeared to the officer to be a light-colored t-shirt. The officer parked his vehicle and approached the men on foot. As soon as they saw the officer, one man fled into a backyard and the other man, defendant, continued to walk southbound … . The officer pursued the fleeing man with his gun drawn and observed the man hide what was later discovered to be a handgun underneath a pile of leaves.

When the second officer arrived at the scene, he observed the fleeing man run into the backyard with the first officer running after him and defendant walking … . No one else was in the area. As the second officer parked and exited his vehicle, defendant yelled an expletive and fled. The officer gave chase and observed a handgun fall from defendant’s waist.

The [Appellate Division] explained that defendant’s flight upon seeing the second officer exit his vehicle provided the officer with the requisite reasonable suspicion of criminal activity to warrant his pursuit of defendant, and the fact that defendant dropped the gun during the pursuit gave rise to probable cause to arrest … .

The issue of whether the second officer had reasonable suspicion to pursue defendant is a mixed question of law and fact, limiting our review … . Because there is record support for the determination of the lower courts, we affirm … . People v Gayden, 2016 NY Slip Op 07702, CtApp 11-17-16

CRIMINAL LAW (STANDARD OF REVIEW IN COURT OF APPEALS FOR MIXED QUESTION OF LAW AND FACT REQUIRED AFFIRMANCE OF DENIAL OF SUPPRESSION MOTION)/APPEALS (CRIMINAL LAW, STANDARD OF REVIEW IN COURT OF APPEALS FOR MIXED QUESTION OF LAW AND FACT REQUIRED AFFIRMANCE OF DENIAL OF SUPPRESSION MOTION)/STREET STOPS (STANDARD OF REVIEW IN COURT OF APPEALS FOR MIXED QUESTION OF LAW AND FACT REQUIRED AFFIRMANCE OF DENIAL OF SUPPRESSION MOTION)/SUPPRESS, MOTIONS TO (STANDARD OF REVIEW IN COURT OF APPEALS FOR MIXED QUESTION OF LAW AND FACT REQUIRED AFFIRMANCE OF DENIAL OF SUPPRESSION MOTION)

,

DEFENDANT HAD STANDING TO CONTEST THE SEARCH, MATTER REMITTED FOR A SUPPRESSION HEARING BECAUSE AN APPELLATE COURT CANNOT CONSIDER A MATTER NOT RULED UPON BELOW.

The Second Department determined Supreme Court erred in finding defendant did not have standing to contest the search of a van. The court explained that it could not consider the merits of the suppression motion because the merits were not ruled upon by the court below. The options for handling this scenario were explained in some detail. The court opted to hold the appeal in abeyance and remit the matter for a suppression hearing:

This Court has deemed it appropriate to reverse or modify the judgment of conviction, rather than holding the appeal in abeyance, where no purpose would be served by holding the appeal and directing that a new determination be made. This is the case, for example, where a determination of the alternative issue would not change the ultimate determination of the suppression motion … , or where the trial court has already determined the alternative issue in the defendant’s favor, in which case the issue would, in all likelihood, be decided in the defendant’s favor again, and thus would remain unreviewable after remittal … . However, where, as here, the alternative issue raised by the People on appeal has not been determined by the trial court, and the resolution of that issue could affect the determination of the suppression motion, we deem it appropriate to hold the defendant’s appeal in abeyance and remit the matter for consideration of the alternative issue. People v Chazbani, 2016 NY Slip Op 07337, 2nd Dept 11-9-16

 

CRIMINAL LAW (DEFENDANT HAD STANDING TO CONTEST THE SEARCH, MATTER REMITTED FOR A SUPPRESSION HEARING BECAUSE AN APPELLATE COURT CANNOT CONSIDER A MATTER NOT RULED UPON BELOW)/APPEALS (CRIMINAL LAW, DEFENDANT HAD STANDING TO CONTEST THE SEARCH, MATTER REMITTED FOR A SUPPRESSION HEARING BECAUSE AN APPELLATE COURT CANNOT CONSIDER A MATTER NOT RULED UPON BELOW)

,

COMPLAINT SUFFICIENTLY ALLEGED A CAUSE OF ACTION UNDER THE DOCTRINE OF PIERCING THE CORPORATE VEIL, ISSUE NOT RAISED BELOW PROPERLY CONSIDERED ON APPEAL.

The Second Department determined plaintiff had stated a cause of action under the “pierce the corporate veil” theory. Weaver was the developer of a construction project and Andrea was the general contractor. Defendant Weinberg was a member of Weaver and a shareholder of Andrea. Plaintiff had obtained a unpaid judgment against Andrea. Plaintiff alleged Weinberg abused the privilege of doing business in corporate form and sought to pierce the corporate veil and hold Weinberg liable for Andrea’s debts. The court noted that, although the contention that New York does not recognize a cause of action for piercing the corporate veil was not raised below, the question could be considered on appeal because it involves a question of law which appears on the record and which could not have been avoided if raised at the proper time:

To survive a motion to dismiss the complaint, a party seeking to pierce the corporate veil must allege facts that, if proved, establish that the party against whom the doctrine is asserted (1) exercised complete domination over the corporation with respect to the transaction at issue, and (2) through such domination, abused the privilege of doing business in the corporate form to perpetrate a wrong or injustice against the plaintiff such that a court in equity will intervene … . “Factors to be considered in determining whether an individual has abused the privilege of doing business in the corporate or LLC form include the failure to adhere to [corporate or] LLC formalities, inadequate capitalization, commingling of assets, and the personal use of [corporate or] LLC funds” … .

“Additionally, the corporate veil will be pierced to achieve equity, even absent fraud, when a corporation has been so dominated by an individual or another corporation and its separate entity so ignored that it primarily transacts the dominator’s business instead of its own and can be called the other’s alter ego” … . A cause of action under the doctrine of piercing the corporate veil is “not required to meet any heightened level of particularity in its allegations … .

Here, the plaintiff adequately pleaded allegations that Weinberg dominated Andrea, and that he engaged in acts amounting to an abuse of the corporate form to perpetrate a wrong or injustice against the plaintiff. In this regard, the plaintiff alleged that Andrea was inadequately capitalized, that Weinberg commingled the assets of Andrea with the assets of Weaver, that Weinberg failed to adhere to corporate formalities with respect to Andrea, that Weinberg kept assets out of Andrea to avoid paying its debts and the judgment to the plaintiff, and that Weinberg used the account of Weaver to partially pay the debts of Andrea to the plaintiff. The plaintiff also sufficiently pleaded allegations that Weaver was the alter ego of Andrea. Olivieri Constr. Corp. v WN Weaver St., LLC, 2016 NY Slip Op 07302, 2nd Dept 11-9-16

 

CORPORATION LAW(COMPLAINT SUFFICIENTLY ALLEGED A CAUSE OF ACTION UNDER THE DOCTRINE OF PIERCING THE CORPORATE VEIL, ISSUE NOT RAISED BELOW PROPERLY CONSIDERED ON APPEAL)/PIERCING THE CORPORATE VEIL (COMPLAINT SUFFICIENTLY ALLEGED A CAUSE OF ACTION UNDER THE DOCTRINE OF PIERCING THE CORPORATE VEIL, ISSUE NOT RAISED BELOW PROPERLY CONSIDERED ON APPEAL)/APPEALS (COMPLAINT SUFFICIENTLY ALLEGED A CAUSE OF ACTION UNDER THE DOCTRINE OF PIERCING THE CORPORATE VEIL, ISSUE NOT RAISED BELOW PROPERLY CONSIDERED ON APPEAL)

,

ACCEPTING A VERDICT BEFORE REQUESTED TESTIMONY WAS READ BACK TO THE JURY WAS NOT A MODE OF PROCEEDINGS ERROR AND WAS NOT PRESERVED FOR REVIEW.

The Third Department determined any error associated with a jury-request for a readback of testimony not a mode of proceedings error and was unpreserved for review. Before the requested testimony was readback, the jury indicated it had reached a verdict. The verdict was accepted without the readback taking place:

The court read the note from the jury verbatim and announced its intention to permit a readback of the requested testimony one witness at a time, to which defense counsel did not object. In explaining the procedure to the jury, the court stated, “once you’ve heard the first readback . . . it might answer your questions” and explained that the jury could return to deliberations while the court reporter prepared additional testimony for readback, to which defense counsel did not object. After the readback of the relevant portions of one witness’s testimony, and presumably while the court reporter was preparing additional testimony for readback, the jury informed the court that it had reached a verdict. As defendant concedes, no mode of proceedings error occurred … , and, thus, defendant’s failure to lodge any complaint to any of the steps that the court took to respond to the request renders the issue unpreserved for our review … . Moreover, defendant’s current contention that the court should not have allowed the jury to reach a verdict until the entire readback had been completed is unavailing. By informing the court that it had reached a verdict prior to the completion of the readback, the jury unambiguously indicated that it was no longer in need of previously requested information … . People v Robtoy, 2016 NY Slip Op 07232, 3rd Dept 11-3-16

CRIMINAL LAW (ACCEPTING A VERDICT BEFORE REQUESTED TESTIMONY WAS READ BACK TO THE JURY WAS NOT A MODE OF PROCEEDINGS ERROR AND WAS UNPRESERVED FOR REVIEW)/APPEALS (CRIMINAL LAW, ACCEPTING A VERDICT BEFORE REQUESTED TESTIMONY WAS READ BACK TO THE JURY WAS NOT A MODE OF PROCEEDINGS ERROR AND WAS UNPRESERVED FOR REVIEW)

,

ALTHOUGH THE ISSUE HAD NOT BEEN RAISED ON APPEAL, THE APPELLATE COURT, REVERSING SUPREME COURT, ADJUDICATED DEFENDANT A YOUTHFUL OFFENDER.

The Third Department, in a full-fledged opinion by Justice Peters, determined Supreme Court’s summary denial of youthful offender status, which had not even been addressed by counsel or the probation department, did not satisfy the statutory requirements. The Third Department, notwithstanding that the youthful offender issue had not been raised on appeal, stepped in and adjudicated the defendant a youthful offender. The defendant took sneakers from the victim after lifting his shirt, revealing what may have been a gun in his waistband:

The grievous error of the Probation Department, the People and defense counsel, while not specifically raised on appeal, cries out for resolution. Since we are vested with the broad, plenary power to modify a sentence in the interest of justice, we can address this injustice and, if warranted, exercise our power to adjudicate defendant a youthful offender … . * * *

Defendant was just 16 years old at the time of the present offense and, although he had served a period of juvenile probation, he had no prior criminal record or history of violence … . We reiterate that the crime, although serious, did not cause physical injury to anyone involved and defendant neither brandished the object nor uttered any direct threats of violence during the incident. After his arrest, defendant cooperated with police and provided a statement admitting that he had taken the shoes with no intention of returning them to the victim but denying that he had possessed or displayed anything that resembled a gun … . People v Marquis A., 2016 NY Slip Op 07060, 3rd Dept 10-27-16

 

CRIMINAL LAW (ALTHOUGH THE ISSUE HAD NOT BEEN RAISED ON APPEAL, THE APPELLATE COURT, REVERSING SUPREME COURT, ADJUDICATED DEFENDANT A YOUTHFUL OFFENDER)/APPEALS (CRIMINAL LAW, ALTHOUGH THE ISSUE HAD NOT BEEN RAISED ON APPEAL, THE APPELLATE COURT, REVERSING SUPREME COURT, ADJUDICATED DEFENDANT A YOUTHFUL OFFENDER)/YOUTHFUL OFFENDER STATUS (ALTHOUGH THE ISSUE HAD NOT BEEN RAISED ON APPEAL, THE APPELLATE COURT, REVERSING SUPREME COURT, ADJUDICATED DEFENDANT A YOUTHFUL OFFENDER)

,

AFTER REMITTAL FROM THE COURT OF APPEALS, THE APPELLATE DIVISION REFUSED TO EXERCISE ITS INTEREST OF JUSTICE JURISDICTION TO HEAR AN UNPRESERVED SENTENCING ISSUE; DEFENDANT WAS NOT ELIGIBLE FOR THE THREE-YEAR SENTENCE PROMISED AS PART OF A PLEA BARGAIN.

The First Department, in a case remitted by the Court of Appeals, in a full-fledged opinion by Justice Tom, over a two-justice dissent, determined defendant’s challenge to the legality of his sentence would not be reviewed in the interest of justice. Defendant had been promised a three-year sentence, but was not eligible for a sentence less than six years. In violation of his plea agreement, defendant committed a crime while awaiting sentence. As a result the three-year promise was properly withdrawn and a six year sentence imposed. The Court of Appeals held that defendant’s failure to object based upon the illegal three-year sentence promise precluded appeal to the Court of Appeals. However, upon remittal, the Appellate Division could consider the question if it exercised its interest of justice jurisdiction (which the majority declined to do):

… [T]here is nothing rare or unusual about this case or this defendant. The plea proceedings do not raise a concern about defendant’s guilt. Defendant was advised of the rights he was waiving by pleading guilty and affirmed he was pleading guilty of his own free will. Defendant was represented by counsel and received a favorable sentence. Finally, defendant violated the plea agreement by committing another crime and the final sentence imposed was both legal and within the range announced by the court. Nor has defendant presented anything to demonstrate that his case is extraordinary. These facts, coupled with defendant’s failure to preserve the issue for review, fail to support the exercise of our discretion to review in the interest of justice, and militate against such exercise. People v Williams, 2016 NY Slip Op 07102, 1st Dept 10-27-16

CRIMINAL LAW (AFTER REMITTAL FROM THE COURT OF APPEALS, THE APPELLATE DIVISION REFUSED TO EXERCISE ITS INTEREST OF JUSTICE JURISDICTION TO HEAR AN UNPRESERVED SENTENCING ISSUE; DEFENDANT WAS NOT ELIGIBLE FOR THE THREE-YEAR SENTENCE PROMISED AS PART OF A PLEA BARGAIN)/SENTENCING (AFTER REMITTAL FROM THE COURT OF APPEALS, THE APPELLATE DIVISION REFUSED TO EXERCISE ITS INTEREST OF JUSTICE JURISDICTION TO HEAR AN UNPRESERVED SENTENCING ISSUE; DEFENDANT WAS NOT ELIGIBLE FOR THE THREE-YEAR SENTENCE PROMISED AS PART OF A PLEA BARGAIN)/APPEALS (AFTER REMITTAL FROM THE COURT OF APPEALS, THE APPELLATE DIVISION REFUSED TO EXERCISE ITS INTEREST OF JUSTICE JURISDICTION TO HEAR AN UNPRESERVED SENTENCING ISSUE; DEFENDANT WAS NOT ELIGIBLE FOR THE THREE-YEAR SENTENCE PROMISED AS PART OF A PLEA BARGAIN)/INTEREST OF JUSTICE JURISDICTION (CRIMINAL APPEALS, AFTER REMITTAL FROM THE COURT OF APPEALS, THE APPELLATE DIVISION REFUSED TO EXERCISE ITS INTEREST OF JUSTICE JURISDICTION TO HEAR AN UNPRESERVED SENTENCING ISSUE; DEFENDANT WAS NOT ELIGIBLE FOR THE THREE-YEAR SENTENCE PROMISED AS PART OF A PLEA BARGAIN)

, ,

SEARCH OF JUVENILE’S SHOES WHILE HE WAS DETAINED AT THE POLICE DEPARTMENT WAS REASONABLE AND THE WEAPON SEIZED FROM THE SHOE WAS THEREFORE ADMISSIBLE; DUAL DISSENT PRESENTED A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS.

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Pigott, over a three-judge dissent, determined the search of a juvenile’s shoe at the police station was reasonable. Therefore, the weapon found in the shoe was admissible. The dissent argued the Court of Appeals did not have jurisdiction to hear the appeal because the dissent below did not present a question of law, but rather a mixed question of law and fact:

Respondent initially told police on the street that he was 16 years old. Because he lacked identification, the police transported him to the precinct, where, nearly an hour later, he told them that he was only 15 years old. Thereafter, the officers treated respondent as a juvenile, placing him in a juvenile room and making him remove his belt, shoelaces and shoes as a protective measure until his parents were notified and he could be picked up from the precinct. Based on respondent’s representation that he was 16 years old and the officers’ observations of him in the street, the officers had probable cause to arrest respondent for disorderly conduct.

We also conclude that the limited search of respondent’s shoes was reasonable. The majority found no fault with the request that respondent remove his belt and shoelaces as a safety precaution; rather it was the request to remove his shoes that the majority held to be “far more intrusive than a frisk or patdown” … . However, the officers were not first required to suspect that respondent either possessed contraband or posed a danger to himself or officers before being directed to remove his shoes. In that regard, the limited search of respondent’s shoes while he was temporarily detained and awaiting the notification of his parents was a reasonable protective measure employed by police to ensure both the safety of respondent and the officers, and the intrusion was minimal … . Matter of Jamal S., 2016 NY Slip Op 07045, CtApp 10-27-16

 

CRIMINAL LAW (SEARCH OF JUVENILE’S SHOES WHILE HE WAS DETAINED AT THE POLICE DEPARTMENT WAS REASONABLE AND THE WEAPON SEIZED FROM THE SHOE WAS THEREFORE ADMISSIBLE; DUAL DISSENT PRESENTED A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS)/APPEALS (CRIMINAL LAW, SEARCH OF JUVENILE’S SHOES WHILE HE WAS DETAINED AT THE POLICE DEPARTMENT WAS REASONABLE AND THE WEAPON SEIZED FROM THE SHOE WAS THEREFORE ADMISSIBLE; DUAL DISSENT PRESENTED A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS)/SEARCH AND SEIZURE (SEARCH OF JUVENILE’S SHOES WHILE HE WAS DETAINED AT THE POLICE DEPARTMENT WAS REASONABLE AND THE WEAPON SEIZED FROM THE SHOE WAS THEREFORE ADMISSIBLE; DUAL DISSENT PRESENTED A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS)/FAMILY LAW (SEARCH OF JUVENILE’S SHOES WHILE HE WAS DETAINED AT THE POLICE DEPARTMENT WAS REASONABLE AND THE WEAPON SEIZED FROM THE SHOE WAS THEREFORE ADMISSIBLE; DUAL DISSENT PRESENTED A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS)/JUVENILE DELINQUENCY (SEARCH OF JUVENILE’S SHOES WHILE HE WAS DETAINED AT THE POLICE DEPARTMENT WAS REASONABLE AND THE WEAPON SEIZED FROM THE SHOE WAS THEREFORE ADMISSIBLE; DUAL DISSENT PRESENTED A QUESTION OF LAW REVIEWABLE BY THE COURT OF APPEALS)

,

APPELLATE DIVISION APPLIED THE WRONG TEST TO A MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW; APPLYING THE CORRECT TEST, THE JURY VERDICT WAS NOT “UTTERLY IRRATIONAL” AND SHOULD NOT HAVE BEEN SET ASIDE.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined the Appellate Division used the wrong test when it reversed a civil assault verdict and ordered a new trial. The central issue was whether defendant was the initial aggressor. In the first trial, the jury found that the defendant had acted in self-defense. The plaintiff moved to set aside the verdict as a matter of law and, alternatively, to set aside the verdict as against the weight of the evidence. The trial court denied the motion. The Appellate Division, applying a weight of the evidence test, reversed and held ” ‘no fair interpretation of the evidence’ supported ‘the verdict finding that defendant acted in self-defense’ inasmuch as it was predicated upon ‘a conclusion that defendant was not the initial aggressor in the encounter’ .” Based on the Appellate Division’s ruling, at the second trial, the defendant was deemed the initial aggressor as a matter of law and the jury found for the plaintiff. The Court of Appeals held that the test the Appellate Division should have applied on its review of the first trial was the “utterly irrational (matter of law)” test, not the “weight of the evidence” test. Applying the correct test, the Court of Appeals found that the jury’s conclusion the defendant acted in self-defense was not “utterly irrational.” Therefore the Appellate Division should not have set aside defendant’s verdict and then precluded him from presenting the “initial aggressor/self-defense” question to the jury in the second trial:

The question before us is whether the Appellate Division’s legal conclusion in its 2012 order was reached under the proper test. When the Appellate Division reviews a jury determination, it may either examine the facts to determine whether the weight of the evidence comports with the verdict, or the court may determine that the evidence presented was insufficient as a matter of law, rendering the verdict utterly irrational … . Defendant argues that the Appellate Division erred by setting aside the jury verdict in his favor and improperly determining as a matter of law that a justification defense was unavailable to him, without finding the verdict to be utterly irrational. We agree. * * *

In its 2012 order, although the Appellate Division examined the facts and determined that “the jury’s conclusion that defendant was not the first to threaten the immediate use of physical force [wa]s unreachable on any fair interpretation of the evidence” (98 AD3d 830) — ostensibly a weight of the evidence review — the effect of that order was to hold as a matter of law that defendant was the initial aggressor to whom the defense of justification was not available — a determination that could only be reached by concluding that the verdict was “utterly irrational.” Yet, the Appellate Division did not use the utterly irrational test. The Appellate Division’s error in not applying the proper test resulted in defendant being improperly precluded from raising a justification defense on the retrial. Defendant should have been afforded a new trial on all the issues in the case, including consideration of his justification defense by the jury. Despite this error, reversal is only required if we find that the jury verdict was not utterly irrational.

Because determining whether a jury verdict was utterly irrational involves a pure question of law, this Court may look at the trial evidence and make that determination … . We must consider the jury charge as to initial aggressor and self-defense that was given during the first trial because the instruction, submitted without objection, is the law of the case … . Based on that instruction, … we hold that the jury’s determination that defendant acted in self-defense was not utterly irrational. * * *

Accordingly, the order appealed from and the … Appellate Division order insofar as brought up for review should be reversed, with costs, and the matter remitted to Supreme Court for a new trial in accordance with the opinion herein. Killon v Parrotta, 2016 NY Slip Op 07048, CtApp 10-27-16

CIVIL PROCEDURE (APPEALS, APPELLATE DIVISION APPLIED TO WRONG TEST TO A MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW; APPLYING THE CORRECT TEST, THE JURY VERDICT WAS NOT “UTTERLY IRRATIONAL” AND SHOULD NOT HAVE BEEN SET ASIDE)/APPEALS (CIVIL, MOTION TO SET ASIDE VERDICT AS A MATTER OF LAW, APPELLATE DIVISION APPLIED TO WRONG TEST TO A MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW; APPLYING THE CORRECT TEST, THE JURY VERDICT WAS NOT “UTTERLY IRRATIONAL” AND SHOULD NOT HAVE BEEN SET ASIDE)/VERDICT, MOTION TO SET ASIDE (APPEALS, APPELLATE DIVISION APPLIED TO WRONG TEST TO A MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW; APPLYING THE CORRECT TEST, THE JURY VERDICT WAS NOT “UTTERLY IRRATIONAL” AND SHOULD NOT HAVE BEEN SET ASIDE)

, , ,

SORA RISK LEVEL ASSESSMENT REVERSED, DEFENDANT WAS NOT GIVEN A MEANINGFUL OPPORTUNITY TO RESPOND TO COURT’S ASSESSMENT FOR VIOLENCE.

The Third Department, reversing County Court’s risk level assessment, determined defendant was not given a meaningful opportunity to respond to the assessment of points:

A defendant has both a statutory and constitutional right to notice of points sought to be assigned to him or her so as to be afforded a meaningful opportunity to respond to that assessment … . Not only did County Court fail to give defendant notice of its intention to sua sponte assess points for the category of use of violence, it affirmatively misled defendant by its assurance that it had already “made a decision . . . regarding a point score,” which included no assignment of points for that risk factor. Accordingly, defendant was denied due process … . Considering the fact that defendant was never aware of the potential of the assignment of such points until a point in time where he no longer had an opportunity to object — his only remaining opportunity to be heard being explicitly limited to arguing for a downward departure — he need not have taken any further action to preserve the issue for our review … . People v Griest, 2016 NY Slip Op 06907, 33rd Dept 10-20-16

CRIMINAL LAW (SORA RISK LEVEL ASSESSMENT REVERSED, DEFENDANT WAS NOT GIVEN A MEANINGFUL OPPORTUNITY TO RESPOND TO COURT’S ASSESSMENT FOR VIOLENCE)/SEX OFFENDER REGISTRATION ACT (SORA) (SORA RISK LEVEL ASSESSMENT REVERSED, DEFENDANT WAS NOT GIVEN A MEANINGFUL OPPORTUNITY TO RESPOND TO COURT’S ASSESSMENT FOR VIOLENCE)/APPEALS (SORA RISK LEVEL ASSESSMENT REVERSED, DEFENDANT WAS NOT GIVEN A MEANINGFUL OPPORTUNITY TO RESPOND TO COURT’S ASSESSMENT FOR VIOLENCE, NO FURTHER ACTION NECESSARY TO PRESERVE ISSUE FOR APPEAL)