You are here: / Criminal Law

COUNTY COURT SHOULD HAVE INQUIRED INTO THE REASON FOR DEFENDANT’S FAILURE TO APPEAR AT SENTENCING, SENTENCE VACATED (THIRD DEPT)

The Third Department determined the court should have inquired into the reasons for defendant’s failure to appear at sentencing before sentencing him in absentia:

When defendant did not appear for sentencing on April 2, 2015, the court noted that defendant had been present for “each and every other occasion,” before issuing a bench warrant and adjourning sentencing to April 9, 2015. When defendant again failed to appear, his counsel represented that the only contact he had had with defendant was a conversation on April 1, 2015, when defendant informed counsel that he had additional doctors’ appointments to attend, and counsel advised him to appear in court for sentencing on April 2, 2015. There is no indication in the record that defendant was advised that sentencing was adjourned to April 9, 2015. The court was aware of defendant’s medical condition, which had required hospitalization in October 2014 and was the reason that sentencing was first adjourned from January 2015 to April 2, 2015. The court specifically observed that no explanation for defendant’s absence had been provided by defendant or his counsel but, nonetheless, made no inquiry on the record into the status of any efforts to locate defendant since April 2, when it had issued the bench warrant, before it proceeded to sentence him in absentia. In light of its failure to make any inquiry whatsoever into the reason for defendant’s absence, County Court erred when it sentenced defendant in absentia … . People v Sassenscheid, 2018 NY Slip Op 04037, Third Dept 6-7-18

CRIMINAL LAW (SENTENCING, COUNTY COURT SHOULD HAVE INQUIRED INTO THE REASON FOR DEFENDANT’S FAILURE TO APPEAR AT SENTENCING, SENTENCE VACATED (THIRD DEPT))/SENTENCING (COUNTY COURT SHOULD HAVE INQUIRED INTO THE REASON FOR DEFENDANT’S FAILURE TO APPEAR AT SENTENCING, SENTENCE VACATED (THIRD DEPT))

BECAUSE A MATERIAL INDUCEMENT TO DEFENDANT’S GUILTY PLEA WAS NULLIFIED THE PLEA MUST BE VACATED (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea, determined the complicated facts of this case nullified  a benefit that was expressly promised as inducement to a guilty plea. Defendant had pled guilty to burglaries in two counties (Schenectady and Albany) as a persistent felony offender. Both persistent felony offender guilty pleas were overturned. His subsequent plea was reversed in this case:

Defendant pleaded guilty here upon the understanding that the imposed sentence would run concurrently to the aggregate prison sentence of 16½ years to life imposed in Albany County. He was also aware that a higher aggregate sentence would be imposed in Albany County if he successfully challenged his status as a persistent violent felony offender, and Supreme Court promised that any resentence in this case would run concurrently to that increased sentence.

During the pendency of this appeal, this Court reversed the judgment of conviction in Albany County, vacated defendant’s guilty plea and remitted for further proceedings … . The sentencing exposure that prompted defendant’s concern about concurrent sentencing here accordingly dissolved and, indeed, he entered into a new plea arrangement in Albany County where he received, among other things, a much shorter prison term of six years. In short, the “reduction of the preexisting sentence [in Albany County] nullified a benefit that was expressly promised and was a material inducement to the guilty plea” here … . Inasmuch as “we cannot say that defendant would have foregone pretrial and trial rights and pleaded guilty” had he known that his guilty plea in Albany County would be vacated, his plea must also be vacated here … . People v Brewington, 2018 NY Slip Op 04035, Third Dept 6-7-18

​CRIMINAL LAW (PLEA AGREEMENTS, BECAUSE A MATERIAL INDUCEMENT TO DEFENDANT’S GUILTY PLEA WAS NULLIFIED THE PLEA MUST BE VACATED (THIRD DEPT))/PLEA AGREEMENTS (BECAUSE A MATERIAL INDUCEMENT TO DEFENDANT’S GUILTY PLEA WAS NULLIFIED THE PLEA MUST BE VACATED (THIRD DEPT))/GUILTY PLEAS (PLEA AGREEMENTS, BECAUSE A MATERIAL INDUCEMENT TO DEFENDANT’S GUILTY PLEA WAS NULLIFIED THE PLEA MUST BE VACATED (THIRD DEPT))

DEFENDANT PROPERLY ACCUSED AND CONVICTED OF ATTEMPTED POSSESSION OF A SWITCHBLADE, EXTENSIVE DISSENTING OPINION (CT APP).

The Court of Appeals, over an extensive dissenting opinion by Judge Rivera, affirmed defendant’s conviction for attempted possession of a weapon, i.e., a switchblade. The dissent argued that the proof at the non-jury trial and the allegations in the accusatory instrument did not demonstrate the knife met the statutory definition of a switchblade:

From the dissent:  … [T]he narrow issue presented on this appeal is whether the knife described in the accusatory instrument and at trial meets the statutory description for a per se weapon, one which is outlawed regardless of the defendant’s reasons for possession. The majority holds that the accusatory instrument is jurisdictionally sound because the knife as described meets the statutory definition of a switchblade… . I disagree. Moreover, even if the majority were correct, the evidence at trial established that the knife in question was not a switchblade within the meaning of the Penal Law. People v Berrezueta, 2018 NY Slip Op 04032, CtApp 6-7-18

CRIMINAL LAW (DEFENDANT PROPERLY ACCUSED AND CONVICTED OF ATTEMPTED POSSESSION OF A SWITCHBLADE, DISSENTING OPINION DISAGREED (CT APP))/SWITCHBLADES (CRIMINAL LAW, DEFENDANT PROPERLY ACCUSED AND CONVICTED OF ATTEMPTED POSSESSION OF A SWITCHBLADE, DISSENTING OPINION DISAGREED (CT APP))

,

DEFENDANT FIRED INTO THE CAR AHEAD DURING A HIGH SPEED CHASE, DEPRAVED INDIFFERENCE MURDER AND ASSAULT CONVICTIONS AFFIRMED, TESTIMONY FROM THE FIRST TRIAL BY A WITNESS WHO HAD SINCE BEEN DEPORTED PROPERLY ADMITTED (SECOND DEPT).

The Second Department affirmed defendant’s conviction of depraved indifference murder and assault. During a high speed chase defendant fired a bullet into the car he was following. The driver, Singh, lost control and struck a trestle. One person, Arena, was killed, and Singh and another person, Weiner, were seriously injured. Defendant fled the scene. Defendant had been convicted of these crimes in 2003 and they were affirmed on appeal. But he obtained federal habeas corpus relief in 2013 and was retried in 2015.The sentencing court properly imposed a consecutive sentence for criminal possession of a weapon, which was not an inclusory concurrent count. One of the witnesses in the first trial had been deported and the court properly admitted his testimony at the second trial:

[T]he evidence proved beyond a reasonable doubt that the defendant recklessly engaged in conduct which created a grave risk of death to another person. The defendant engaged in a high-speed chase, in the course of which he fired a gun at the fleeing car, causing Singh, the driver, to lose control of that car. Following the crash, the defendant exhibited no signs of remorse for the results of his recklessness, and even went so far as to express his disappointment that Weiner had survived the crash. The direct and circumstantial evidence proved that the defendant deliberately engaged in a high-speed chase and shot at Singh’s car with an utter disregard for the value of human life, and thus, was legally sufficient to support the jury’s determination that the defendant acted with depraved indifference with respect to the death of Arena and the serious injuries sustained by Singh and Weiner … . …

The defendant’s contention that the County Court erred in admitting the testimony of Jose Vanderlinde from the first trial is without merit. Vanderlinde had testified at the defendant’s first trial but was deported before the second trial commenced, and was barred from re-entering the United States. Under these circumstances, the court properly admitted Vanderlinde’s testimony from the defendant’s first trial, as the prosecutor’s failure to produce the witness “was not due to indifference or a strategic preference for presenting [the witness’s] testimony in the more sheltered form of [trial] minutes rather than in the confrontational setting of a personal appearance on the stand … . People v Williams, 2018 NY Slip Op 04015, Second Dept 6-6-18

​CRIMINAL LAW (DEFENDANT FIRED INTO THE CAR AHEAD DURING A HIGH SPEED CHASE, DEPRAVED INDIFFERENCE MURDER AND ASSAULT CONVICTIONS AFFIRMED, TESTIMONY FROM THE FIRST TRIAL BY A WITNESS WHO HAD SINCE BEEN DEPORTED PROPERLY ADMITTED (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, DEFENDANT FIRED INTO THE CAR AHEAD DURING A HIGH SPEED CHASE, DEPRAVED INDIFFERENCE MURDER AND ASSAULT CONVICTIONS AFFIRMED, TESTIMONY FROM THE FIRST TRIAL BY A WITNESS WHO HAD SINCE BEEN DEPORTED PROPERLY ADMITTED (SECOND DEPT))/DEPRAVED INDIFFERENCE (CRIMINAL LAW, DEFENDANT FIRED INTO THE CAR AHEAD DURING A HIGH SPEED CHASE, DEPRAVED INDIFFERENCE MURDER AND ASSAULT CONVICTIONS AFFIRMED, TESTIMONY FROM THE FIRST TRIAL BY A WITNESS WHO HAD SINCE BEEN DEPORTED PROPERLY ADMITTED (SECOND DEPT))/PRIOR TESTIMONY (CRIMINAL LAW, TESTIMONY FROM THE FIRST TRIAL BY A WITNESS WHO HAD SINCE BEEN DEPORTED PROPERLY ADMITTED (SECOND DEPT))

,

CORRECTION LAW DOES NOT REQUIRE SEX OFFENDER TO DISCLOSE HIS OR HER USE OF FACEBOOK, IT IS ENOUGH THAT THE SEX OFFENDER DISCLOSE EMAIL ADDRESSES AND SCREEN NAMES (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, reversing defendant’s conviction, determined the indictment charging defendant sex offender with a violation of the Correction Law for failing to disclose his use of Facebook was jurisdictionally defective. Disclosure of his Facebook use is not required by the Correction Law and, therefore, failure to disclose is not a crime. Defendant had complied with the requirements of Correction Law §§ 168-f (4) and 168-a (18) by disclosing his email address and screen names:

… [W]e conclude that the social media website or application — be it Facebook or any other social networking website or application — does not constitute a “designation used for the purposes of chat, instant messaging, social networking or other similar [I]nternet communication” (Correction Law § 168-a [18]). An Internet identifier is not the social networking website or application itself; rather, it is how someone identifies himself or herself when accessing a social networking account, whether it be with an electronic mail address or some other name or title, such as a screen name or user name. Defendant’s failure to disclose his use of Facebook is not a crime, rendering the indictment jurisdictionally defective … . People v Ellis, 2018 NY Slip Op 03873, Third Dept 5-31-18

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), CORRECTION LAW DOES NOT REQUIRE SEX OFFENDER TO DISCLOSE HIS OR HER USE OF FACEBOOK, IT IS ENOUGH THAT THE SEX OFFENDER DISCLOSE EMAIL ADDRESSES AND SCREEN NAMES (THIRD DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (CORRECTION LAW DOES NOT REQUIRE SEX OFFENDER TO DISCLOSE HIS OR HER USE OF FACEBOOK, IT IS ENOUGH THAT THE SEX OFFENDER DISCLOSE EMAIL ADDRESSES AND SCREEN NAMES (THIRD DEPT))/CORRECTION LAW  (SEX OFFENDER REGISTRATION ACT (SORA), CORRECTION LAW DOES NOT REQUIRE SEX OFFENDER TO DISCLOSE HIS OR HER USE OF FACEBOOK, IT IS ENOUGH THAT THE SEX OFFENDER DISCLOSE EMAIL ADDRESSES AND SCREEN NAMES (THIRD DEPT))/FACEBOOK (SEX OFFENDER REGISTRATION ACT (SORA), CORRECTION LAW DOES NOT REQUIRE SEX OFFENDER TO DISCLOSE HIS OR HER USE OF FACEBOOK, IT IS ENOUGH THAT THE SEX OFFENDER DISCLOSE EMAIL ADDRESSES AND SCREEN NAMES (THIRD DEPT))/SOCIAL NETWORKING (SEX OFFENDER REGISTRATION ACT (SORA), CORRECTION LAW DOES NOT REQUIRE SEX OFFENDER TO DISCLOSE HIS OR HER USE OF FACEBOOK, IT IS ENOUGH THAT THE SEX OFFENDER DISCLOSE EMAIL ADDRESSES AND SCREEN NAMES (THIRD DEPT))

PAROLE BOARD PROPERLY CONSIDERED PETITIONER’S YOUTH AT THE TIME HE COMMITTED SERIOUS CRIMES, PAROLE PROPERLY DENIED (THIRD DEPT).

The Third Department, in a comprehensive decision, determined the parole board had properly considered petitioner’s youth at the time of the commission of the crimes and had properly denied parole. Petitioner was a few weeks from his eighteenth birthday when he committed the crimes and was 44 years old at his 2016 appearance before the parole board:

… [R]eview of the record leads us to the conclusion that the Board did consider the necessary statutory factors, as well as petitioner’s youth at the time of the crimes. Specifically, at the hearing, the Board explored the facts underlying petitioner’s crimes in detail and his insight into his crimes, as well as his release plans, prior criminal record, educational and institutional achievements, lengthy prison disciplinary record, sentencing minutes, COMPAS Risk and Needs Assessment instrument and numerous letters of support. Also, the hearing transcript demonstrates that petitioner’s youth at the time that he committed the crimes was adequately explored. * * *

A thorough review of the Board’s decision evinces that all necessary statutory factors, as well as petitioner’s youth and its attendant characteristics, were considered. Although the Board assigned greater weight to the seriousness of petitioner’s crimes, his history of violence, his failure to complete recommended programming and his lengthy prison disciplinary record, we find that the ultimate determination is rational and, therefore, we will not disturb it … . Matter of Allen v Stanford, 2018 NY Slip Op 03888, Third Dept 5-31-18

CRIMINAL LAW (PAROLE BOARD PROPERLY CONSIDERED PETITIONER’S YOUTH AT THE TIME HE COMMITTED SERIOUS CRIMES, PAROLE PROPERLY DENIED (THIRD DEPT))/PAROLE (PAROLE BOARD PROPERLY CONSIDERED PETITIONER’S YOUTH AT THE TIME HE COMMITTED SERIOUS CRIMES, PAROLE PROPERLY DENIED (THIRD DEPT))

,

DENIAL OF A PETITION TO MODIFY A SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT IS APPEALABLE AS OF RIGHT, PETITION PROPERLY DENIED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Rivera, considering a question of first impression, determined a defendant can appeal, as of right, the denial of a petition to modify a Sex Offender Registration Act (SORA) risk classification. The Second Department further held that the petition was properly denied, in large part because defendant, who was 71 years old and in poor health, did not participate in any sex offender treatment programs and did not accept responsibility for his sex offenses:

… [N]othing in the language of Correction Law § 168-o(2) precludes this Court’s exercise of its broad authority and jurisdiction to entertain and decide the instant appeal. In the context of SORA, we have long recognized the significant impact upon the defendant’s liberty interest. Furthermore, we are cognizant of the ongoing responsibility and crucial importance in maintaining a balance between the procedural safeguards afforded to the defendant and the societal interests involved in protecting “the public from sex offenders” … . … [W]e hold that a sex offender may appeal from an order denying a petition for a downward modification of his risk level. People v Charles, 2018 NY Slip Op 03864, Second Dept 5-30-18

​CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), DENIAL OF A PETITION TO MODIFY A SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT IS APPEALABLE AS OF RIGHT, IN THIS CASE THE PETITION WAS PROPERLY DENIED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (APPEALS, DENIAL OF A PETITION TO MODIFY A SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT IS APPEALABLE AS OF RIGHT, IN THIS CASE THE PETITION WAS PROPERLY DENIED (SECOND DEPT))/APPEALS (CRIMINAL LAW, SEX OFFENDER REGISTRATION ACT (SORA), APPEALS, DENIAL OF A PETITION TO MODIFY A SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT IS APPEALABLE AS OF RIGHT, IN THIS CASE THE PETITION WAS PROPERLY DENIED (SECOND DEPT))

,

COURT DID NOT CONDUCT SEARCHING INQUIRY INTO DEFENDANT’S REQUEST TO PROCEED PRO SE, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined that the court’s inquiry into defendant’s request to proceed pro se was inadequate:

The knowing, voluntary, and intelligent waiver of the right to counsel by a defendant who seeks to proceed pro se requires a “searching inquiry” in which the court must communicate to the defendant both the “risks inherent in proceeding pro se” and “the singular importance of the lawyer in the adversarial system of adjudication” … . Neither a defendant’s expression of a strong desire to proceed pro se, nor elicitation of information demonstrating the defendant might be relatively capable of doing so, is a substitute for the two above-cited essential components of a searching inquiry, which were all but completely absent here. The relevant portion of the trial court’s colloquy with defendant on this subject was essentially limited to warning him that self-representation was a “big mistake” and that the court had seen many pro se defendants convicted after trial.

Even when the record is viewed as a whole, the required inquiry does not appear. Defendant had made several requests for self-representation before a calendar court. However, in each instance the court denied the request on the basis of its initial inquiry about defendant’s understanding of the charges, without reaching the stage of the required pro se inquiry at issue on appeal. People v Herbin, 2018 NY Slip Op 03811, First Dept 5-29-18

​CRIMINAL LAW (LESSER INCLUDED OFFENSES, PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT))/LESSER INCLUDED OFFENSES (PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT))/APPEALS (CRIMINAL LAW, LESSER INCLUDED OFFENSES, PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT))

,

PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT). ​

The First Department, reversing (modifying) defendant’s conviction of robbery second, determined Supreme Court should have submitted robbery third to the jury as a lesser included offense. But because the People agreed that the conviction could be reduced to robbery third a new trial was not necessary:

There was a reasonable view of the evidence supporting defendant’s request for submission of third-degree robbery as a lesser included offense, and we have considered and rejected the People’s argument that the issue is unpreserved. The appropriate remedy for this type of error would normally be a new trial. However, the People’s concession that, if we reach this error, the conviction should be reduced to third-degree robbery renders a new trial unnecessary because the modification provides defendant with a greater remedy than he would have received had the trial court submitted that charge to the jury … . People v Cabassa, 2018 NY Slip Op 03810, First Dept 5-29-18

​CRIMINAL LAW (LESSER INCLUDED OFFENSES, PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT))/LESSER INCLUDED OFFENSES (PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT))/APPEALS (CRIMINAL LAW, LESSER INCLUDED OFFENSES, PEOPLE CONCEDED ROBBERY THIRD SHOULD HAVE BEEN SUBMITTED TO THE JURY AS A LESSER INCLUDED OFFENSE, NO NEED FOR A NEW TRIAL, CONVICTION REDUCED (FIRST DEPT))

,

THE PEOPLE DID NOT PROVE AT THE SUPPRESSION HEARING THAT THE SEARCH OF DEFENDANT’S PERSON AFTER A STREET STOP WAS SUPPORTED BY PROBABLE CAUSE (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to suppress items taken from his person should have been granted because the sequence of events which would have legitimized the search was not proven at the hearing:

… [W]e agree with the People that the police had reasonable suspicion to detain defendant based on the detective’s report that he saw a possible drug transaction in which a Hispanic man later identified as defendant, who was wearing a black leather jacket, handed a bag containing two small white objects to another man before walking away, in close temporal and spatial proximity to defendant’s apprehension … . However, this information did not establish probable cause to arrest and search defendant. The detective did not testify that he observed anything that appeared to be money being exchanged or handled by either of the two men, that there was anything furtive about their behavior aside from the sheer brevity of their encounter, or that the area was particularly drug prone … .

When the detective recovered a bag containing drugs after the apparent buyer discarded it, this clearly raised the level of suspicion to probable cause. However, the nontestifying officers had detained defendant based only on the information known at the time of the initial radioed report. The People’s assertion that the search occurred after the testifying detective made a confirmatory identification of defendant is unsupported by the record. In fact, the detective could not specify when the search occurred, or when he learned about it, and the People did not call any witnesses to testify about the nature and timing of the search based on personal knowledge. People v Ayarde, 2018 NY Slip Op 03750, First Dept 5-24-18

​CRIMINAL LAW (STREET STOP, SEARCH, THE PEOPLE DID NOT PROVE AT THE SUPPRESSION HEARING THAT THE SEARCH OF DEFENDANT’S PERSON AFTER A STREET STOP WAS SUPPORTED BY PROBABLE CAUSE (FIRST DEPT))/STREET STOPS (SEARCH, SEARCH, THE PEOPLE DID NOT PROVE AT THE SUPPRESSION HEARING THAT THE SEARCH OF DEFENDANT’S PERSON AFTER A STREET STOP WAS SUPPORTED BY PROBABLE CAUSE (FIRST DEPT))/SEARCH AND SEIZURE (STREET STOPS, THE PEOPLE DID NOT PROVE AT THE SUPPRESSION HEARING THAT THE SEARCH OF DEFENDANT’S PERSON AFTER A STREET STOP WAS SUPPORTED BY PROBABLE CAUSE (FIRST 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