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DEFENDANT DEMONSTRATED HE PLED GUILTY WITHOUT BEING INFORMED HE MIGHT BE SUBJECT TO CONFINEMENT UNDER THE SEX OFFENDER MANAGEMENT AND TREATMENT ACT (SOMTA) AFTER COMPLETION OF HIS SENTENCE, HIS MOTION TO SET ASIDE HIS CONVICTION WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department determined defendant’s motion to vacate his conviction by guilty plea was properly granted. Defendant demonstrated he was not informed of the possibility he would be subject to the Sex Offender Management and Treatment Act (SOMTA) which could result in further confinement pursuant to the Mental Hygiene Law upon the completion of his sentence:

… [T]he defendant, through evidence presented at the hearing, including his testimony, made the factual showing necessary to demonstrate that his plea of guilty was not knowing and voluntary. When the defendant pleaded guilty, he had already been adjudicated a level three predicate sex offender pursuant to the Sex Offender Registration Act … based on a prior conviction. In addition, … the defendant here was made the subject of a SOMTA proceeding. The defendant testified at the hearing that he would not have taken the plea bargain had he known of SOMTA. Under the circumstances of this case, the defendant showed that “the prospect of SOMTA confinement was realistic enough that it reasonably could have caused him, and in fact would have caused him, to reject an otherwise acceptable plea bargain” … . People v Balcerak, 2018 NY Slip Op 03138, Second Dept 5-2-18

​CRIMINAL LAW (VACATE CONVICTION, DEFENDANT DEMONSTRATED HE PLED GUILTY WITHOUT BEING INFORMED HE MIGHT BE SUBJECT TO CONFINEMENT UNDER THE SEX OFFENDER MANAGEMENT AND TREATMENT ACT (SOMTA) AFTER COMPLETION OF HIS SENTENCE, HIS MOTION TO SET ASIDE HIS CONVICTION WAS PROPERLY GRANTED (SECOND DEPT))/MENTAL HYGIENE LAW (VACATE CONVICTION, DEFENDANT DEMONSTRATED HE PLED GUILTY WITHOUT BEING INFORMED HE MIGHT BE SUBJECT TO CONFINEMENT UNDER THE SEX OFFENDER MANAGEMENT AND TREATMENT ACT (SOMTA) AFTER COMPLETION OF HIS SENTENCE, HIS MOTION TO SET ASIDE HIS CONVICTION WAS PROPERLY GRANTED (SECOND DEPT))/VACATE CONVICTION, MOTION TO (DEFENDANT DEMONSTRATED HE PLED GUILTY WITHOUT BEING INFORMED HE MIGHT BE SUBJECT TO CONFINEMENT UNDER THE SEX OFFENDER MANAGEMENT AND TREATMENT ACT (SOMTA) AFTER COMPLETION OF HIS SENTENCE, HIS MOTION TO SET ASIDE HIS CONVICTION WAS PROPERLY GRANTED (SECOND DEPT))/SEX OFFENDER MANAGEMENT AND TREATMENT (SOMTA) (VACATE CONVICTION, DEFENDANT DEMONSTRATED HE PLED GUILTY WITHOUT BEING INFORMED HE MIGHT BE SUBJECT TO CONFINEMENT UNDER THE SEX OFFENDER MANAGEMENT AND TREATMENT ACT (SOMTA) AFTER COMPLETION OF HIS SENTENCE, HIS MOTION TO SET ASIDE HIS CONVICTION WAS PROPERLY GRANTED (SECOND DEPT))

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WAIVER OF APPEAL INEFFECTIVE, DESPITE DEFENDANT’S SIGNING OF A WRITTEN WAIVER (SECOND DEPT).

The Second Department determined defendant’s waiver of appeal was ineffective, despite defendant’s signing of a written waiver:

… [T]he record does not demonstrate that the defendant understood the distinction between the right to appeal and other trial rights forfeited incident to his plea of guilty … . Furthermore, although the record on appeal reflects that the defendant executed written appeal waiver forms, the transcript of the plea proceedings shows that the court did not ascertain on the record whether the defendant had read the waivers or discussed them with defense counsel, or whether he was even aware of their contents … . People v Medina, 2018 NY Slip Op 03151, Second Dept 5-2-18

​CRIMINAL LAW (APPEALS, WAIVER OF APPEAL INEFFECTIVE, DESPITE DEFENDANT’S SIGNING OF A WRITTEN WAIVER (SECOND DEPT))/APPEALS (CRIMINAL LAW, WAIVER OF APPEAL INEFFECTIVE, DESPITE DEFENDANT’S SIGNING OF A WRITTEN WAIVER (SECOND DEPT))

MERE USE OF ANOTHER’S PERSONAL IDENTIFYING INFORMATION, LIKE A CREDIT CARD NUMBER, ESTABLISHES A VIOLATION OF NEW YORK’S IDENTITY THEFT STATUTE, THERE IS NO NEED TO PROVE THE DEFENDANT ASSUMED THE VICTIM’S IDENTITY IN SOME ADDITIONAL WAY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissent, determined that New York’s identity theft statute is violated by the use of personal identifying information, like a credit card number, without more. The 1st Department case, which was reversed, had held the mere use of personal identifying information is insufficient, and the People must establish a defendant both used the victim’s personal identifying information and assumed the victim’s identity. The 1st Department concluded the proof had established that defendant used the personal identifying information of the victim but not that he assumed her identity. (The defendant in the 1st Department case had assumed the identity of a fictitious person.) The 4th Department case, which was affirmed, concluded defendant’s use of the victim’s name and bank account number established she assumed his identity within the meaning of the statute, and the phrase “assumes the identity of another person” is not a discrete element of the identity theft statute:

The common issue presented in these appeals is whether the People may establish that a defendant “assumes the identity of another,” within the meaning of New York’s identity theft statute, by proof that the defendant used another’s personal identifying information, such as that person’s name, bank account, or credit card number. Defendants … argue that the use of personal identifying information does not automatically establish that a defendant assumes another’s identity, and thus the People bear the burden of establishing independently both a defendant’s use of protected information and assumptive conduct. The Appellate Division departments have split on the proper interpretation of the disputed statutory text. The 1st Department adopted the construction advanced here by defendants, leading to its conclusion that [the] conviction of identity theft was unsupported by sufficient evidence. By contrast, the 4th Department concluded that the statute applies when a defendant uses the personal identifying information of another, upholding [the] conviction. We now reject defendants’ decontextualized interpretation of the statutory language and conclude that the law defines the use of personal identifying information of another as one of the express means by which a defendant assumes that person’s identity. People v Roberts, 2018 NY Slip Op 03172, CtApp 5-3-18

​CRIMINAL LAW (IDENTITY THEFT, MERE USE OF ANOTHER’S PERSONAL IDENTIFYING INFORMATION, LIKE A CREDIT CARD NUMBER, ESTABLISHES A VIOLATION OF NEW YORK’S IDENTITY THEFT STATUTE, THERE IS NO NEED TO PROVE THE DEFENDANT ASSUMED THE VICTIM’S IDENTITY IN SOME ADDITIONAL WAY (CT APP))/IDENTITY THEFT (MERE USE OF ANOTHER’S PERSONAL IDENTIFYING INFORMATION, LIKE A CREDIT CARD NUMBER, ESTABLISHES A VIOLATION OF NEW YORK’S IDENTITY THEFT STATUTE, THERE IS NO NEED TO PROVE THE DEFENDANT ASSUMED THE VICTIM’S IDENTITY IN SOME ADDITIONAL WAY (CT APP))

RECORD OF DEFENDANT’S ACQUITTAL SHOULD NOT HAVE BEEN UNSEALED FOR USE IN A SENTENCING PROCEEDING, RECORD SHOULD BE RESEALED BUT ERROR WAS HARMLESS (FIRST DEPT).

The First Department, over a two-judge concurrence, determined the record of defendant’s acquittal should not have been unsealed for use by the sentencing court. The record should be resealed but the error did not require resentencing:

… [W]hile we agree with defendant that the unsealing was improper, we reject [defendant’s] request for resentencing. In People v Patterson (78 NY2d 711 [1991]), the Court of Appeals held that suppression was not required where the police obtained identification evidence in violation of CPL 160.50, and the witness then identified the defendant in court. The Court ruled that “there is nothing in the history of CPL 160.50 or related statutes indicating a legislative intent to confer a constitutionally derived substantial right’, such that the violation of that statute, without more, would justify invocation of the exclusionary rule with respect to subsequent independent and unrelated criminal proceedings” … . We conclude that defendant is entitled to no greater relief based on the statutory violation that resulted in the court’s consideration of the improperly unsealed information at sentencing than he would have been entitled to had the information been admitted at trial. … . People v Anonymous, 2018 NY Slip Op 03097, First Dept 5-1-18

​CRIMINAL LAW (SEALING OF ACQUITTAL RECORD, RECORD OF DEFENDANT’S ACQUITTAL SHOULD NOT HAVE BEEN UNSEALED FOR USE IN A SENTENCING PROCEEDING, RECORD SHOULD BE RESEALED BUT ERROR WAS HARMLESS (FIRST DEPT))/SEALING (CRIMINAL LAW, ACQUITTAL, SEALING OF ACQUITTAL RECORD, RECORD OF DEFENDANT’S ACQUITTAL SHOULD NOT HAVE BEEN UNSEALED FOR USE IN A SENTENCING PROCEEDING, RECORD SHOULD BE RESEALED BUT ERROR WAS HARMLESS (FIRST DEPT))/ACQUITTAL (SEALING OF ACQUITTAL RECORD, RECORD OF DEFENDANT’S ACQUITTAL SHOULD NOT HAVE BEEN UNSEALED FOR USE IN A SENTENCING PROCEEDING, RECORD SHOULD BE RESEALED BUT ERROR WAS HARMLESS (FIRST DEPT))

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SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP).

The Court of Appeals affirmed the Appellate Division’s determination that suppression of all evidence was required in this traffic stop case. Judge Garcia wrote an extensive dissenting opinion questioning the continued viability of the DeBour criteria for the analysis of encounters with the police. The dissenting opinion is well-worth reading but is not summarized here. The majority noted that a suppression ruling that is not reduced to writing is appealable:

The Appellate Division did not err in rejecting the People’s argument that defendant could not challenge on appeal a suppression ruling that was not reduced to writing. Record evidence supports the Appellate Division’s suppression determination and, accordingly, that determination is beyond this Court’s further review. To the extent the dissent questions the continued utility of the DeBour paradigm for analyzing encounters between police and members of the public (People v DeBour, 40 NY2d 210 [1976]) and suggests that People v Garcia (20 NY3d 317 [2012]) was wrongly decided, those questions are not presented here where the parties litigated this case within the framework of our existing precedent. People v Gates, 2018 NY Slip Op 03096, CtApp 5-1-18

​CRIMINAL LAW (TRAFFIC STOP, SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP))/EVIDENCE (CRIMINAL LAW, SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP))/STREET STOPS (CRIMINAL LAW, SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP))/STREET STOPS (CRIMINAL LAW, SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP))/APPEALS (CRIMINAL LAW, ORAL RULINGS, SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP))/SUPPRESSION (TRAFFIC STOP, SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP))/SEARCH AND SEIZURE (TRAFFIC STOP, SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP))/DE BOUR (TRAFFIC STOP, SUPPRESSION OF ALL EVIDENCE IN THIS TRAFFIC STOP CASE AFFIRMED, EXTENSIVE DISSENT QUESTIONED CONTINUED VIABILITY OF THE DEBOUR STREET STOP ANALYSIS, ORAL SUPPRESSION RULING APPEALABLE (CT APP))

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APPEAL FROM LOCAL CRIMINAL COURT NOT PROPERLY TAKEN, THE PROCEEDINGS WERE NOT TRANSCRIBED AND NO AFFIDAVIT OF ERRORS WAS SERVED OR FILED (CT APP).

The Court of Appeals reversed the Appellate Term, noting that the appeal from a local court was not properly taken. The proceedings were not transcribed by a court stenographer and no affidavit of errors had been filed or served:

On review of submissions pursuant to section 500.11 of the Rules, order reversed, and case remitted to the Appellate Term, 2nd Department, Ninth and Tenth Judicial Districts, for further proceedings. Because the case originated in a local criminal court and the proceedings were not transcribed by a court stenographer, the appeal was not properly taken due to the failure to serve or file an affidavit of errors (see CPL 460.10[3]). People v Epakchi, 2018 NY Slip Op 03095, CtApp 5-1-18

CRIMINAL LAW (APPEALS, APPEAL FROM LOCAL CRIMINAL COURT NOT PROPERLY TAKEN, THE PROCEEDINGS WERE NOT TRANSCRIBED AND NO AFFIDAVIT OF ERRORS WAS SERVED OR FILED (CT APP))/APPEALS (CRIMINAL LAW, AFFIDAVIT OF ERRORS, APPEAL FROM LOCAL CRIMINAL COURT NOT PROPERLY TAKEN, THE PROCEEDINGS WERE NOT TRANSCRIBED AND NO AFFIDAVIT OF ERRORS WAS SERVED OR FILED (CT APP))/AFFIDAVIT OF ERRORS (CRIMINAL LAW, APPEALS, APPEAL FROM LOCAL CRIMINAL COURT NOT PROPERLY TAKEN, THE PROCEEDINGS WERE NOT TRANSCRIBED AND NO AFFIDAVIT OF ERRORS WAS SERVED OR FILED (CT APP))

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SCHIZOPHRENIA DIAGNOSIS DID NOT JUSTIFY AN UPWARD DEPARTURE IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT PROCEEDING (FOURTH DEPT).

The Fourth Department determined County Court should not have granted the People’s request for an upward departure in this Sex Offender Registration Act (SORA) risk assessment proceeding based upon a schizophrenia diagnosis:

Although the risk assessment instrument prepared by the Board of Examiners of Sex Offenders classified defendant as a presumptive level two risk, County Court granted the People’s request for an upward departure to a level three risk based on defendant’s alleged diagnosis of schizophrenia. That was error. Even if defendant in fact suffers from schizophrenia, “the record is devoid of evidence that the alleged mental illness is causally related to any risk of reoffense”… . Contrary to the People’s contention, the fact that defendant exhibits many symptoms of schizophrenia does not supply the necessary clear and convincing evidence that the disorder is causally related to an increased risk of future sex offending … . People v Robinson, 2018 NY Slip Op 02986, Fourth Dept 4-27-18

​CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), SCHIZOPHRENIA DIAGNOSIS DID NOT JUSTIFY AN UPWARD DEPARTURE IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT PROCEEDING (FOURTH DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (SCHIZOPHRENIA DIAGNOSIS DID NOT JUSTIFY AN UPWARD DEPARTURE IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT PROCEEDING (FOURTH DEPT))/SCHIZOPHRENIA (SEX OFFENDER REGISTRATION ACT (SORA), SCHIZOPHRENIA DIAGNOSIS DID NOT JUSTIFY AN UPWARD DEPARTURE IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK ASSESSMENT PROCEEDING (FOURTH DEPT))

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THE JUDGE DID NOT HAVE THE AUTHORITY TO GRANT DEFENSE COUNSEL’S REQUEST FOR A VIDEOTAPE OF AN INTERVIEW OF THE CHILD (ALLEGED) VICTIM IN THIS SEXUAL OFFENSE CASE, THE INTERVIEW WAS CONDUCTED BY A PRIVATE PARTY AND WAS DISCOVERABLE ONLY IF IT CONSTITUTED BRADY (EXCULPATORY) MATERIAL, THE JUDGE DID NOT VIEW THE TAPE TO DETERMINE WHETHER IT WAS BRADY MATERIAL (FOURTH DEPT).

The Fourth Department determined a County Court judge did not have the authority to grant the defense request for a videotape of an interview of the child (alleged) victim in this sexual offense case. The child was interviewed by a private child advocacy group (Bivona). The only ground upon which the court could grant the request was that the videotape constituted exculpatory (Brady) material. However, the judge did not conduct an in camera review of the tape, and therefore had no basis for determining the tape was exculpatory. The petitioner here (the DA) brought this Article 78 proceeding to prohibit the respondent (the judge) from allowing defense counsel to review the tape:

… [R]espondent issued a written order acknowledging that the video recording did not constitute Rosario material and that he thus lacked any authority to order its disclosure on that ground … . Instead, respondent concluded that the video recording could potentially contain exculpatory evidence, which petitioner would be obligated to disclose under Brady v Maryland … . Respondent determined that neither he nor the “untrained prosecutor” could make the determination whether the person interviewing the child “employ[ed] suggestive interrogation techniques.” Rather, “only defense counsel, with full knowledge of the defendant’s case[, could] make the proper assessment.” As a result, respondent again ordered petitioner to permit defendant’s attorney to inspect the video recording. * * *

… [A] prosecutor possesses some discretion in deciding what evidence should be disclosed to the defense … but, “where a request [for Brady material] is made and there is some basis’ for believing that the prosecutor may be in possession of potentially exculpatory material, deference to the prosecutor’s discretion must give way, and the duty to determine the merits of the request for disclosure then devolves on the trial court’ “… . Nevertheless, “[d]iscovery which is unavailable pursuant to the statute may not be ordered based on principles of due process because there is no general constitutional right to discovery in criminal cases’ “… .

Here, there has been no determination that the video recording contains exculpatory evidence, and thus defendant has no right to disclosure thereof. Inasmuch as respondent required petitioner to disclose evidence before determining whether defendant is entitled to such disclosure, we conclude that respondent acted in excess of his authority and that a writ of prohibition is the appropriate remedy … . Matter of Doorley v Castro, 2018 NY Slip Op 02939, Fourth Dept 4-27-18

CRIMINAL LAW (EVIDENCE, JUDGES, THE JUDGE DID NOT HAVE THE AUTHORITY TO GRANT DEFENSE COUNSEL’S REQUEST FOR A VIDEOTAPE OF AN INTERVIEW OF THE CHILD (ALLEGED) VICTIM IN THIS SEXUAL OFFENSE CASE, THE INTERVIEW WAS CONDUCTED BY A PRIVATE PARTY AND WAS DISCOVERABLE ONLY IF IT CONSTITUTED BRADY (EXCULPATORY) MATERIAL, THE JUDGE DID NOT VIEW THE TAPE TO DETERMINE WHETHER IT WAS BRADY MATERIAL (FOURTH DEPT))/JUDGES (CRIMINAL LAW, EVIDENCE, PROHIBITION,  THE JUDGE DID NOT HAVE THE AUTHORITY TO GRANT DEFENSE COUNSEL’S REQUEST FOR A VIDEOTAPE OF AN INTERVIEW OF THE CHILD (ALLEGED) VICTIM IN THIS SEXUAL OFFENSE CASE, THE INTERVIEW WAS CONDUCTED BY A PRIVATE PARTY AND WAS DISCOVERABLE ONLY IF IT CONSTITUTED BRADY (EXCULPATORY) MATERIAL, THE JUDGE DID NOT VIEW THE TAPE TO DETERMINE WHETHER IT WAS BRADY MATERIAL (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, JUDGES, PROHIBITION, HE JUDGE DID NOT HAVE THE AUTHORITY TO GRANT DEFENSE COUNSEL’S REQUEST FOR A VIDEOTAPE OF AN INTERVIEW OF THE CHILD (ALLEGED) VICTIM IN THIS SEXUAL OFFENSE CASE, THE INTERVIEW WAS CONDUCTED BY A PRIVATE PARTY AND WAS DISCOVERABLE ONLY IF IT CONSTITUTED BRADY (EXCULPATORY) MATERIAL, THE JUDGE DID NOT VIEW THE TAPE TO DETERMINE WHETHER IT WAS BRADY MATERIAL (FOURTH DEPT))/BRADY MATERIAL (CRIMINAL LAW, JUDGES, PROHIBITION, HE JUDGE DID NOT HAVE THE AUTHORITY TO GRANT DEFENSE COUNSEL’S REQUEST FOR A VIDEOTAPE OF AN INTERVIEW OF THE CHILD (ALLEGED) VICTIM IN THIS SEXUAL OFFENSE CASE, THE INTERVIEW WAS CONDUCTED BY A PRIVATE PARTY AND WAS DISCOVERABLE ONLY IF IT CONSTITUTED BRADY (EXCULPATORY) MATERIAL, THE JUDGE DID NOT VIEW THE TAPE TO DETERMINE WHETHER IT WAS BRADY MATERIAL (FOURTH DEPT))/PROHIBITION (JUDGES, CRIMINAL LAW, EVIDENCE, THE JUDGE DID NOT HAVE THE AUTHORITY TO GRANT DEFENSE COUNSEL’S REQUEST FOR A VIDEOTAPE OF AN INTERVIEW OF THE CHILD (ALLEGED) VICTIM IN THIS SEXUAL OFFENSE CASE, THE INTERVIEW WAS CONDUCTED BY A PRIVATE PARTY AND WAS DISCOVERABLE ONLY IF IT CONSTITUTED BRADY (EXCULPATORY) MATERIAL, THE JUDGE DID NOT VIEW THE TAPE TO DETERMINE WHETHER IT WAS BRADY MATERIAL (FOURTH DEPT))

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SENTENCING JUDGE DID NOT HAVE THE AUTHORITY TO ASSURE DEFENDANT OF ADMISSION INTO THE SHOCK PROGRAM, DEFENDANT’S PLEA VACATED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined the sentencing court did not have the authority to promise defendant would go to “shock camp” and defendant had relied on the judge’s promise when he pled guilty:

The record establishes that the court believed it had the authority to grant defendant admission into a shock incarceration program and that it made such admission a condition of defendant’s guilty plea. At sentencing, the court acted in accordance with its perceived authority and the plea agreement by imposing a term of incarceration of 1½ to 3 years “with shock camp.” There is no dispute that defendant was not admitted into a shock incarceration program.

We agree with defendant that the court had no authority to assure him of admission into a shock incarceration program or to impose such as part of the sentence … . Inasmuch as the record establishes that defendant, in accepting the plea, relied on a promise of the court that could not, as a matter of law, be honored, defendant is entitled to vacatur of his guilty plea … . People v Smith, 2018 NY Slip Op 03025, Fourth Dept 4-27-18

​CRIMINAL LAW (SENTENCING JUDGE DID NOT HAVE THE AUTHORITY TO ASSURE DEFENDANT OF ADMISSION INTO THE SHOCK PROGRAM, DEFENDANT’S PLEA VACATED (FOURTH DEPT))/JUDGES (CRIMINAL LAW, SENTENCING JUDGE DID NOT HAVE THE AUTHORITY TO ASSURE DEFENDANT OF ADMISSION INTO THE SHOCK PROGRAM, DEFENDANT’S PLEA VACATED (FOURTH DEPT))/SENTENCING (SENTENCING JUDGE DID NOT HAVE THE AUTHORITY TO ASSURE DEFENDANT OF ADMISSION INTO THE SHOCK PROGRAM, DEFENDANT’S PLEA VACATED (FOURTH DEPT))/SHOCK CAMP (CRIMINAL LAW, SENTENCING JUDGE DID NOT HAVE THE AUTHORITY TO ASSURE DEFENDANT OF ADMISSION INTO THE SHOCK PROGRAM, DEFENDANT’S PLEA VACATED (FOURTH DEPT))

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THE TRIAL JUDGE RESERVED DECISION ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL ON THE RESISTING ARREST CHARGE AND DID NOT RULE ON IT AFTER CONVICTION, ON APPEAL THE FAILURE TO RULE CANNOT BE CONSIDERED A DENIAL, MATTER REMITTED FOR A RULING (FOURTH DEPT).

The Fourth Department noted that the trial judge reserved decision on defendant’s motion for a trial order of dismissal on the resisting arrest charge. Because the judge never ruled on the motion, the matter was remitted for a ruling:

Defendant also challenges the sufficiency of the evidence with respect to the conviction of resisting arrest. We note that Supreme Court denied defendant’s motion for a trial order of dismissal with respect to the charges of burglary in the third degree and petit larceny but reserved decision with respect to the resisting arrest charge. The matter was submitted to the jury, which returned a verdict convicting defendant of all charges. The court never ruled on the remainder of the motion. Thus, we do not address defendant’s contention with respect to the resisting arrest charge because, “in accordance with People v Concepcion (17 NY3d 192, 197-198 [2011]) and People v LaFontaine (92 NY2d 470, 474 [1998], rearg denied 93 NY2d 849 [1999]), we cannot deem the court’s failure to rule on [that part of] the . . . motion as a denial thereof’ ” … . We therefore hold the case in appeal No. 1, reserve decision, and remit the matter to Supreme Court for a ruling on the remainder of the motion. People v Hymes, 2018 NY Slip Op 02942, Fourth Dept 4-27-18

​CRIMINAL LAW (TRIAL ORDER OF DISMISSAL, THE TRIAL JUDGE RESERVED DECISION ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL ON THE RESISTING ARREST CHARGE AND DID NOT RULE ON IT AFTER CONVICTION, ON APPEAL THE FAILURE TO RULE CANNOT BE CONSIDERED A DENIAL, MATTER REMITTED FOR A RULING (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, TRIAL ORDER OF DISMISSAL, THE TRIAL JUDGE RESERVED DECISION ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL ON THE RESISTING ARREST CHARGE AND DID NOT RULE ON IT AFTER CONVICTION, ON APPEAL THE FAILURE TO RULE CANNOT BE CONSIDERED A DENIAL, MATTER REMITTED FOR A RULING (FOURTH DEPT))/APPEALS (CRIMINAL LAW, TRIAL ORDER OF DISMISSAL, THE TRIAL JUDGE RESERVED DECISION ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL ON THE RESISTING ARREST CHARGE AND DID NOT RULE ON IT AFTER CONVICTION, ON APPEAL THE FAILURE TO RULE CANNOT BE CONSIDERED A DENIAL, MATTER REMITTED FOR A RULING (FOURTH DEPT))/TRIAL ORDER OF DISMISSAL (CRIMINAL LAW, THE TRIAL JUDGE RESERVED DECISION ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL ON THE RESISTING ARREST CHARGE AND DID NOT RULE ON IT AFTER CONVICTION, ON APPEAL THE FAILURE TO RULE CANNOT BE CONSIDERED A DENIAL, MATTER REMITTED FOR A RULING (FOURTH DEPT))

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