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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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IMPORTANT WITNESS RECANTED HER TRIAL TESTIMONY, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT). ​

The Fourth Department determined defendant motion to vacate his conviction should not have been denied without a hearing. A prosecution witness recanted her trial testimony:

The motion was based on the affidavit of a prosecution witness who recanted her trial testimony that defendant admitted to her that he started a certain house fire. That testimony formed the basis for defendant’s conviction of arson in the second degree. Notably, the witness averred that, “Before the trial[,] the police investigator told me if I testified on [defendant’s] behalf they would take my daughter away. I am still concerned about this.” The People did not submit an opposing affidavit from any of the police officers involved in the case. The court denied the motion without a hearing upon finding that the witness’s recantation was unreliable.

We conclude based on the totality of the circumstances that the court erred in denying that part of the motion with respect to the conviction of arson in the second degree without first holding a hearing … . The witness’s “trial testimony, if false, was extremely prejudicial to defendant inasmuch as, without that testimony, there would have been no basis for the jury to convict defendant” for setting the fire at issue in the arson in the second degree count … .  People v Grant, 2018 NY Slip Op 02951, Fourth Dept 4-27-18

​CRIMINAL LAW (VACATE CONVICTION, IMPORTANT WITNESS RECANTED HER TRIAL TESTIMONY, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT))/ EVIDENCE (CRIMINAL LAW, VACATE CONVICTION, IMPORTANT WITNESS RECANTED HER TRIAL TESTIMONY, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT))/VACATE CONVICTION, MOTION TO  (RECANTED TESTIMONY, IMPORTANT WITNESS RECANTED HER TRIAL TESTIMONY, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT))/RECANTED TESTIMONY (VACATE CONVICTION,  IMPORTANT WITNESS RECANTED HER TRIAL TESTIMONY, MOTION TO VACATE CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT))

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JURY INSTRUCTION ALLOWED CONVICTION ON A THEORY NOT IN THE INDICTMENT, COUNT DISMISSED, SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT).

The Fourth Department determined that the harassment jury instruction was defective because it allowed the jury to convict on a theory that was not alleged in the indictment. The Fourth Department further found that the 18-year sentence for rape was unduly harsh and reduced the sentence to eight years. The Fourth Department noted that the sentencing court did not take certain mitigating factors into consideration and indicated defendant was sentenced harshly because he had decided to go to trial:

Here, the indictment charged defendant with harassment in the second degree on the ground that … he slapped the complainant with the intent to harass, annoy, or alarm her. Nevertheless, the court instructed the jury that it could find him guilty if he shoved her or subjected her to other forms of physical contact. The evidence at trial could have established either theory. Therefore, that part of the judgment convicting defendant of harassment in the second degree must be reversed … . …

… [T]he sentence imposed for rape in the first degree is unduly harsh and severe. The alleged incident occurred in the context of an intimate relationship that lasted several months between two otherwise consenting adults who were close in age. The complainant had the opportunity to report the incident to the police immediately after it happened but chose not to do so. In the recorded conversations between defendant and the complainant, which occurred two to three months after the incident, the complainant repeatedly expressed satisfaction with her relationship, and a willingness to use the criminal justice system to gain the upper hand in it. We note that defendant’s history of contacts with the criminal justice system is not extensive, and thus it does not weigh heavily against him.

The record does not indicate that the sentencing court considered any of the above substantial mitigating factors in imposing the sentence. To the contrary, the court expressed only that it wished to impose a sentence for rape in the first degree in excess of the offers made during the plea bargaining process. Indeed, the sentence of 18 years of incarceration is double that of the most recent plea offer. It is well established that a defendant may not be punished for exercising his constitutional right to a trial … . Although a sentence after trial usually will be harsher than a sentence accompanying a prior plea offer … , a defendant’s refusal to plead guilty does not absolve the court of its responsibility to consider appropriate sentencing factors … . People v Morales, 2018 NY Slip Op 02958, Fourth Dept 4-27-18

​CRIMINAL LAW (JURY INSTRUCTION ALLOWED CONVICTION ON A THEORY NOT IN THE INDICTMENT, COUNT DISMISSED, SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, JURY INSTRUCTION ALLOWED CONVICTION ON A THEORY NOT IN THE INDICTMENT, COUNT DISMISSED, SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT))/SENTENCING (SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT))/HARSH AND SEVERE (SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT))

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A DEFENDANT WHO REQUESTS A RESTITUTION HEARING IS ENTITLED TO ONE, EVEN WHERE A HEARING HAD BEEN HELD AFTER DEFENDANT’S FIRST TRIAL (FOURTH DEPT).

The Fourth Department noted that defendant had requested a restitution hearing and therefore the court was required to hold one. Defendant’s conviction in her first trial was reversed and a new trial was ordered. Even though a hearing had been held in the first proceeding, she was entitled to a hearing after the second trial:

… [T]he court erred in denying her request for a restitution hearing. It is well settled that where, as here, a defendant requests a restitution hearing, Penal Law § 60.27 (2) requires that one be provided, “irrespective of the level of evidence in the record” … . Once we reversed the prior judgment and granted defendant a new trial, she was “restored to the status obtaining before the initial trial” … and, as a result, it is irrelevant that a hearing was held following the first trial. People v Case, 2018 NY Slip Op 02995, Fourth Dept 4-27-18

​CRIMINAL LAW (A DEFENDANT WHO REQUESTS A RESTITUTION HEARING IS ENTITLED TO ONE, EVEN WHERE A HEARING HAD BEEN HELD AFTER DEFENDANT’S FIRST TRIAL (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, RESTITUTION, A DEFENDANT WHO REQUESTS A RESTITUTION HEARING IS ENTITLED TO ONE, EVEN WHERE A HEARING HAD BEEN HELD AFTER DEFENDANT’S FIRST TRIAL (FOURTH DEPT))/RESTITUTION (CRIMINAL LAW, A DEFENDANT WHO REQUESTS A RESTITUTION HEARING IS ENTITLED TO ONE, EVEN WHERE A HEARING HAD BEEN HELD AFTER DEFENDANT’S FIRST TRIAL (FOURTH DEPT))

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DEFENDANT ENTITLED TO DEMONSTRATE SHE WOULD NOT HAVE PLED GUILTY HAD SHE BEEN INFORMED OF THE DEPORTATION CONSEQUENCES, THE ISSUE SURVIVES THE WAIVER OF APPEAL AND THE FAILURE TO PRESERVE (FOURTH DEPT).

The Fourth Department determined that defendant was entitled to attempt to demonstrate she would not have pled guilty had she been informed of the deportation consequence of her plea, even though the issue had not been preserved and she had waived her right to appeal:

… [D]efendant, a noncitizen, contends that her felony guilty plea was not knowingly, voluntarily, and intelligently entered because County Court failed to advise her of the potential deportation consequences of such a plea, as required by People v Peque (22 NY3d 168 …) . As a preliminary matter, we note that defendant’s challenge to the voluntariness of her plea survives her waiver of the right to appeal… . Furthermore, contrary to the People’s contention, preservation was not required inasmuch as the record bears no indication that defendant knew about the possibility of deportation … . With respect to defendant’s substantive contention, the People correctly concede that the court did not properly advise defendant of the deportation consequences of her plea. We therefore hold the case, reserve decision and remit the matter to County Court to afford defendant an opportunity to move to vacate her plea based upon a showing that “there is a reasonable probability’ that she would not have pleaded guilty had she known that she faced the risk of being deported as a result of the plea” … . People v Roman, 2018 NY Slip Op 03048, Fourth Dept 4-27-18

​CRIMINAL LAW (DEFENDANT ENTITLED TO DEMONSTRATE SHE WOULD NOT HAVE PLED GUILTY HAD SHE BEEN INFORMED OF THE DEPORTATION CONSEQUENCES, THE ISSUE SURVIVES THE WAIVER OF APPEAL AND THE FAILURE TO PRESERVE (FOURTH DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT ENTITLED TO DEMONSTRATE SHE WOULD NOT HAVE PLED GUILTY HAD SHE BEEN INFORMED OF THE DEPORTATION CONSEQUENCES, THE ISSUE SURVIVES THE WAIVER OF APPEAL AND THE FAILURE TO PRESERVE (FOURTH DEPT))/IMMIGRATION (CRIMINAL LAW, DEPORTATION, DEFENDANT ENTITLED TO DEMONSTRATE SHE WOULD NOT HAVE PLED GUILTY HAD SHE BEEN INFORMED OF THE DEPORTATION CONSEQUENCES, THE ISSUE SURVIVES THE WAIVER OF APPEAL AND THE FAILURE TO PRESERVE (FOURTH DEPT))/DEPORTATION (CRIMINAL LAW, DEFENDANT ENTITLED TO DEMONSTRATE SHE WOULD NOT HAVE PLED GUILTY HAD SHE BEEN INFORMED OF THE DEPORTATION CONSEQUENCES, THE ISSUE SURVIVES THE WAIVER OF APPEAL AND THE FAILURE TO PRESERVE (FOURTH DEPT))/PLEA, MOTION TO VACATE (DEFENDANT ENTITLED TO DEMONSTRATE SHE WOULD NOT HAVE PLED GUILTY HAD SHE BEEN INFORMED OF THE DEPORTATION CONSEQUENCES, THE ISSUE SURVIVES THE WAIVER OF APPEAL AND THE FAILURE TO PRESERVE (FOURTH DEPT))

SENTENCE IMPOSED AFTER FAILURE TO PAY RESTITUTION UNDULY HARSH AND SEVERE (FOURTH DEPT).

The Fourth Department determined the sentence imposed based upon failure to pay restitution was harsh and excessive:

… [T]he sentence imposed by County Court is unduly harsh and severe. The sole basis for the declaration of delinquency was defendant’s failure to pay restitution to the victims of his crimes, and the declaration was filed approximately four months after defendant was placed on probation. Defendant admitted to the violation and, by the time of sentencing, he had paid $2,500 of the $17,775 he owed in restitution. The court nevertheless revoked probation and sentenced defendant to the maximum term of imprisonment for each offense with the sentences running consecutively, for an aggregate sentence of 3⅓ to 10 years.

Inasmuch as defendant’s crimes are nonviolent and he had no prior criminal record aside from a misdemeanor charge to which he pleaded guilty the day before his plea in this case, we modify the judgment as a matter of discretion in the interest of justice by directing that the sentences run concurrently, thus reducing the aggregate sentence to 2⅓ to 7 years … .  People v Lloyd, 2018 NY Slip Op 03032, Fourth Dept 4-27-18

​CRIMINAL LAW (SENTENCE IMPOSED AFTER FAILURE TO PAY RESTITUTION UNDULY HARSH AND SEVERE (FOURTH DEPT))/SENTENCING (SENTENCE IMPOSED AFTER FAILURE TO PAY RESTITUTION UNDULY HARSH AND SEVERE (FOURTH DEPT))/HARSH AND SEVERE (SENTENCE IMPOSED AFTER FAILURE TO PAY RESTITUTION UNDULY HARSH AND SEVERE (FOURTH DEPT))

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