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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))

THE PEOPLE’S GROUND FOR STEP ONE OF THE BATSON CHALLENGE PROCEDURE WAS NOT FACTUALLY CORRECT, THE JUDGE SHOULD NOT HAVE PROCEEDED TO STEP TWO AND THE JUROR SHOULD NOT HAVE BEEN SEATED (FOURTH DEPT).

The Fourth Department reversed defendant’s conviction and dismissed the indictment because of the court’s errors in handling a Batson challenge. The People argued that defense counsel was using all peremptory challenges to exclude women, which was not the case. The court accepted the argument and proceeded to step two of the Batson procedure by asking defense counsel for a gender neutral explanation. Defense counsel stated that the potential juror was a nurse and may have seen victims of domestic abuse. The judge did not accept defense counsel’s reason. The Fourth Department found that step one of the procedure was flawed because defense counsel had excluded both men and women, and noted that the reason given by defense counsel for step two was sufficient:

… [T]he issue whether the People established a prima facie case of discrimination at step one of the Batson inquiry is not moot. Whether a Batson applicant made out a prima facie case of discrimination is moot only if the court proceeded to step three of the inquiry and ” has ruled on the ultimate question of intentional discrimination’ “… . Here, however, the court “stopped at step two and wrongly stated that the proffered reason for the challenge was not [gender] neutral[, and thus] . . . it cannot be said that the trial court [had] ruled on the ultimate question of intentional discrimination’ “… .

With respect to the merits of defendant’s contention concerning the step one inquiry, we agree with him that the People failed to establish a prima facie case of discrimination. The only ground asserted by the People in support of their Batson application was that every peremptory challenge exercised by defendant was used to strike a woman from the jury panel. As defendant argued in opposition, the People’s assertion was incorrect. In fact, defendant had previously exercised peremptory challenges to excuse two men from the jury panel. Thus, the only fact articulated by the People in support of their Batson application is belied by the record. Inasmuch as the People failed to make out a prima facie case of discrimination, the court erred in proceeding to step two of the inquiry and ultimately in seating the juror notwithstanding defendant’s peremptory challenge … . People v Smouse, 2018 NY Slip Op 02921, Fourth Dept 4-27-18

​CRIMINAL LAW (JURORS, BATSON, THE PEOPLE’S GROUND FOR STEP ONE OF THEIR BATSON CHALLENGE WAS NOT FACTUALLY CORRECT, THE JUDGE SHOULD NOT HAVE PROCEEDED TO STEP TWO AND THE JUROR SHOULD NOT HAVE BEEN SEATED (FOURTH DEPT))/JURORS (CRIMINAL LAW, BATSON, THE PEOPLE’S GROUND FOR STEP ONE OF THEIR BATSON CHALLENGE WAS NOT FACTUALLY CORRECT, THE JUDGE SHOULD NOT HAVE PROCEEDED TO STEP TWO AND THE JUROR SHOULD NOT HAVE BEEN SEATED (FOURTH DEPT))/BATSON CHALLENGE (CRIMINAL LAW, JURORS, THE PEOPLE’S GROUND FOR STEP ONE OF THEIR BATSON CHALLENGE WAS NOT FACTUALLY CORRECT, THE JUDGE SHOULD NOT HAVE PROCEEDED TO STEP TWO AND THE JUROR SHOULD NOT HAVE BEEN SEATED (FOURTH DEPT))

UNDER THE DRUG LAW REFORM ACT (DRLA) A DEFENDANT CONVICTED OF A QUALIFYING DRUG FELONY CANNOT BE SENTENCED AS A PERSISTENT FELONY OFFENDER (FOURTH DEPT). ​

The Fourth Department, reversing County Court, in a full-fledged opinion by Justice DeJoseph, in a matter of first impression, determined a defendant convicted of a qualifying drug felony cannot, under the Drug Law Reform Act (DLRA), be sentenced as a persistent felony offender (PFO):

In March 2016, defendant, by counsel, moved pursuant to CPL 440.20 to vacate his sentence on the ground that he was illegally sentenced as a PFO. Defendant contended that, because the crimes of CPCS in the third degree (Penal Law § 220.16 [1]) and CSCS in the third degree (§ 220.39 [1]) fall within Penal Law article 220, a defendant convicted of those crimes is not subject to sentencing as a PFO. Defendant contended that the 2004 DLRA removed the trial court’s discretion to sentence a defendant convicted of controlled substance or marihuana offenses as a PFO. * * *

The plain language of the statutes is clear that, when a defendant is convicted of a drug offense, he or she must be sentenced under the provisions outlined by Penal Law § 60.04, “notwithstanding the provisions of any law.” Thus, inasmuch as section 60.04 does not authorize sentencing such a defendant as a PFO, such a defendant cannot be sentenced pursuant to any provisions that do authorize sentencing as a PFO. While there are no definitive rulings on this issue by the Court of Appeals or any of the Appellate Divisions, trial courts have held that a drug offender is ineligible for PFO sentencing … .

As noted by the Court of Appeals, “when the legislature enacted the . . . DLRA, it sought to ameliorate the excessive punishments meted out to low-level, nonviolent drug offenders under the so-called Rockefeller Drug Laws, and therefore the statute is designed to spread relief as widely as possible, within the bounds of reason, to its intended beneficiaries” … . We believe that our interpretation of the DLRA is consistent with the remedial purpose of the DLRA, and we therefore conclude that Penal Law §§ 60.04 and 70.70 operate to preclude a court from sentencing a defendant found guilty of a qualifying drug felony as a PFO. People v Boykins, 2018 NY Slip Op 02919, Fourth Dept 4-27-18

​CRIMINAL LAW (UNDER THE DRUG LAW REFORM ACT (DRLA) A DEFENDANT CONVICTED OF A QUALIFYING DRUG FELONY CANNOT BE SENTENCED AS A PERSISTENT FELONY OFFENDER (FOURTH DEPT))/SENTENCING (PERSISTENT FELONY OFFENDER, UNDER THE DRUG LAW REFORM ACT (DRLA) A DEFENDANT CONVICTED OF A QUALIFYING DRUG FELONY CANNOT BE SENTENCED AS A PERSISTENT FELONY OFFENDER (FOURTH DEPT))/DRUG LAW REFORM ACT (PERSISTENT FELONY OFFENDER, UNDER THE DRUG LAW REFORM ACT (DRLA) A DEFENDANT CONVICTED OF A QUALIFYING DRUG FELONY CANNOT BE SENTENCED AS A PERSISTENT FELONY OFFENDER (FOURTH DEPT))/PERSISTENT FELONY OFFENDER (DRUG LAW REFORM ACT (DLRA), UNDER THE DRUG LAW REFORM ACT (DRLA) A DEFENDANT CONVICTED OF A QUALIFYING DRUG FELONY CANNOT BE SENTENCED AS A PERSISTENT FELONY OFFENDER (FOURTH DEPT))

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THE MANNER IN WHICH A PRISON BODY CAVITY SEARCH WAS CONDUCTED DEEMED UNREASONABLE AND A VIOLATION OF THE FOURTH AMENDMENT, COCAINE SEIZED FROM DEFENDANT’S BUTTOCKS-AREA SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, over a concurrence and a two-justice dissent, reversing County Court, determined that prison personnel violated defendant’s Fourth Amendment rights in the manner a body cavity search was conducted. A packet of cocaine was removed from defendant’s buttocks-area during a strip search. Apparently the package could be seen but did not fall out on its own:

Here, there was probable cause, but no showing or claim of an emergency … . Considering that defendant was lying face down, naked and handcuffed, it is evident that the officers could keep him under full surveillance without any concern that the wrapped drugs would be absorbed into his body while efforts were made to procure a warrant … . Nor was any attempt made to seek the assistance of medical personnel to secure the contraband in a safe, hygienic manner… . Also, the record is unclear as to whether [the officer] was wearing gloves. Under the second Bell factor [Bell v Wolfish, 441 US 520], the manner in which this search was conducted was not reasonable. Given the above, we conclude that the search was conducted in violation of the Fourth Amendment and that the recovered drugs should have been suppressed. People v Holton, 2018 NY Slip Op 02836, Third Deptp 4-26-18

​CRIMINAL LAW (BODY CAVITY SEARCH, THE MANNER IN WHICH A PRISON BODY CAVITY SEARCH WAS CONDUCTED DEEMED UNREASONABLE AND A VIOLATION OF THE FOURTH AMENDMENT, COCAINE SEIZED FROM DEFENDANT’S BUTTOCKS-AREA SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT))/BODY CAVITY SEARCH (CRIMINAL LAW, THE MANNER IN WHICH A PRISON BODY CAVITY SEARCH WAS CONDUCTED DEEMED UNREASONABLE AND A VIOLATION OF THE FOURTH AMENDMENT, COCAINE SEIZED FROM DEFENDANT’S BUTTOCKS-AREA SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT))/SEARCH AND SEIZURE (CRIMINAL LAW, THE MANNER IN WHICH A PRISON BODY CAVITY SEARCH WAS CONDUCTED DEEMED UNREASONABLE AND A VIOLATION OF THE FOURTH AMENDMENT, COCAINE SEIZED FROM DEFENDANT’S BUTTOCKS-AREA SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT))/SUPPRESSION (CRIMINAL LAW, BODY CAVITY SEARCH, THE MANNER IN WHICH A PRISON BODY CAVITY SEARCH WAS CONDUCTED DEEMED UNREASONABLE AND A VIOLATION OF THE FOURTH AMENDMENT, COCAINE SEIZED FROM DEFENDANT’S BUTTOCKS-AREA SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT))

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DRUG FACTORY JURY INSTRUCTION NOT SUPPORTED BY THE EVIDENCE, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined the evidence was not sufficient to support the “drug factory” jury instruction:

The court’s jury instruction on the drug factory presumption of Penal Law § 220.25(2) was improper. The statutory presumption “does not require that mixing or compounding paraphernalia be found on the premises” … . However, where, as here, the quantity of drugs found does not show “circumstances evincing an intent to unlawfully mix, compound, package, or otherwise prepare for sale” … , giving the drug factory charge is unwarranted. Here, the officers recovered approximately one gram of crack cocaine divided between 26 “twists.” The fact that a larger bag contained individual twists was not a sufficient basis for the trial court to employ the drug factory presumption … . The presence of an unspecified, untested, white residue on a kitchen counter does not justify the charge, where such is equally consistent with the residue left by household cooking and cleaning products. People v Johnson, 2018 NY Slip Op 02879, First Dept 4-26-18

​CRIMINAL LAW (DRUG FACTORY JURY INSTRUCTION NOT SUPPORTED BY THE EVIDENCE, NEW TRIAL ORDERED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, DRUG FACTORY JURY INSTRUCTION NOT SUPPORTED BY THE EVIDENCE, NEW TRIAL ORDERED (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, DRUG FACTORY JURY INSTRUCTION NOT SUPPORTED BY THE EVIDENCE, NEW TRIAL ORDERED (FIRST DEPT))/DRUG FACTORY (CRIMINAL LAW, JURY INSTRUCTIONS, DRUG FACTORY JURY INSTRUCTION NOT SUPPORTED BY THE EVIDENCE, NEW TRIAL ORDERED (FIRST DEPT))

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ARGUMENT THAT THE SPECIAL PROSECUTOR FOR THE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS DID NOT HAVE THE AUTHORITY TO PROSECUTE DEFENDANT WAS NOT RAISED BELOW AND COULD NOT BE DECIDED WITHOUT ADDITIONAL FACTS DEVELOPED ON REMITTAL, THE RECORD ON APPEAL THEREFORE WILL NOT ALLOW REVERSAL IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, over a dissent, determined it could not reach a constitutional issue, regarding whether the authority to prosecute the defendant had been properly delegated to the Special Prosecutor for the Justice Center for the Protection of People with Special Needs, because it was not raised below. The dissent argued the court could exercise its interest of justice jurisdiction and send the case back for a factual determination of the issue (delegation of authority to prosecute):

Defendant first argues that the statute authorizing creation of the Justice Center (see Executive Law § 552 [2]) violates the State Constitution because the statute permits an appointed special prosecutor to conduct prosecutions, thereby usurping the constitutional responsibilities and power of the local District Attorney and the Attorney General, both of whom are elected officials. In the alternative, defendant argues that the statute can be viewed as constitutional only if the District Attorney grants the special prosecutor authority to prosecute and retains oversight and ultimate responsibility for the prosecution, but that these conditions were not met in this case. Thus, defendant argues, the indictment must be dismissed because the Justice Center lacked the authority to prosecute him. * * *

This Court is permitted only to reverse or modify in the interest of justice … . But a full review of the issue would be impossible without remittal, so, at this point, we do not now know if we would ultimately reverse, modify or affirm. Because we do not know what the outcome would be, and since it is possible that the outcome could be to affirm, we find no authority that would permit us to take corrective action with respect to this issue in the interest of justice. People v Cubero, 2018 NY Slip Op 02839, Third Dept 4-26-18

​CRIMINAL LAW (APPEALS, ARGUMENT THAT THE SPECIAL PROSECUTOR FOR THE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS DID NOT HAVE THE AUTHORITY TO PROSECUTE DEFENDANT WAS NOT RAISED BELOW AND COULD NOT BE DECIDED WITHOUT ADDITIONAL FACTS DEVELOPED ON REMITTAL, THE RECORD ON APPEAL THEREFORE WILL NOT ALLOW REVERSAL IN THE INTEREST OF JUSTICE (THIRD DEPT))/APPEALS (CRIMINAL LAW, INTEREST OF JUSTICE, ARGUMENT THAT THE SPECIAL PROSECUTOR FOR THE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS DID NOT HAVE THE AUTHORITY TO PROSECUTE DEFENDANT WAS NOT RAISED BELOW AND COULD NOT BE DECIDED WITHOUT ADDITIONAL FACTS DEVELOPED ON REMITTAL, THE RECORD ON APPEAL THEREFORE WILL NOT ALLOW REVERSAL IN THE INTEREST OF JUSTICE (THIRD DEPT))/INTEREST OF JUSTICE JURISDICTION (CRIMINAL LAW, APPEALS, ARGUMENT THAT THE SPECIAL PROSECUTOR FOR THE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS DID NOT HAVE THE AUTHORITY TO PROSECUTE DEFENDANT WAS NOT RAISED BELOW AND COULD NOT BE DECIDED WITHOUT ADDITIONAL FACTS DEVELOPED ON REMITTAL, THE RECORD ON APPEAL THEREFORE WILL NOT ALLOW REVERSAL IN THE INTEREST OF JUSTICE (THIRD DEPT))/CONSTITUTIONAL LAW (CRIMINAL LAW, AUTHORITY TO PROSECUTE, ARGUMENT THAT THE SPECIAL PROSECUTOR FOR THE JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS DID NOT HAVE THE AUTHORITY TO PROSECUTE DEFENDANT WAS NOT RAISED BELOW AND COULD NOT BE DECIDED WITHOUT ADDITIONAL FACTS DEVELOPED ON REMITTAL, THE RECORD ON APPEAL THEREFORE WILL NOT ALLOW REVERSAL IN THE INTEREST OF JUSTICE (THIRD DEPT))

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DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S RE THE CLIENT’S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR FURTHER PROCEEDINGS ON THE MOTION WITH NEW COUNSEL (FIRST DEPT).

The First Department determined defense counsel took a position adverse to her client’s on the client’s pro se written motion to withdraw his plea. Therefore the matter was remitted for further proceedings on the motion with new counsel:

Before sentencing, defendant made a written pro se motion to withdraw his guilty plea, asserting that his plea was involuntary because he “was not fully aware of the circumstances involved,” and that he had a meritorious defense. In a companion motion, he cited specific inconsistencies in the victim’s statements. Defendant did not claim there were any deficiencies in defense counsel’s performance. However, when asked by the court whether she had anything to say “on behalf of the motion,” counsel replied, “I don’t think that there . . . is a basis for it,” and that defendant had not wanted to proceed to trial.

This constituted taking a position adverse to defendant’s, and thus warranted assignment of new counsel… . To the extent that, after the court denied the motion, counsel made additional comments that appeared to bear on her advice to defendant about taking the plea, these were unnecessary because, in his plea withdrawal motion, defendant never complained about his attorney’s conduct. Thus, counsel’s comments were adverse to her client’s position, and “went beyond a mere explanation of h[er] performance” … . People v Colson, 2018 NY Slip Op 02885, First Dept 4-26-18

​CRIMINAL LAW (ATTORNEYS, DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S RE THE CLIENT’S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR FURTHER PROCEEDINGS ON THE MOTION WITH NEW COUNSEL (FIRST DEPT))/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S RE THE CLIENT’S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR FURTHER PROCEEDINGS ON THE MOTION WITH NEW COUNSEL (FIRST DEPT))/PLEA, MOTION TO WITHDRAW  (ATTORNEYS, DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S RE THE CLIENT’S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR FURTHER PROCEEDINGS ON THE MOTION WITH NEW COUNSEL (FIRST DEPT))/PRO SE (CRIMINAL LAW, ATTORNEYS, PRO SE MOTION TO WITHDRAW PLEA, DEFENSE COUNSEL TOOK A POSITION ADVERSE TO HER CLIENT’S RE THE CLIENT’S PRO SE MOTION TO WITHDRAW HIS PLEA, MATTER REMITTED FOR FURTHER PROCEEDINGS ON THE MOTION WITH NEW COUNSEL (FIRST DEPT))

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ALLEGATIONS OF SEX OFFENSES OF WHICH DEFENDANT WAS ACQUITTED AT TRIAL PROPERLY USED IN THE SORA RISK ASSESSMENT CALCULATION (CT APP).

The Court of Appeals, over an extensive dissenting opinion by Judge Rivera, affirmed the SORA court’s use of allegations of sex offenses of which defendant was acquitted at trial in its risk assessment calculation:

The record supports the affirmed finding that defendant engaged in sexual intercourse, deviate sexual intercourse, or aggravated sexual abuse, warranting the imposition of 25 points under risk factor 2 in determining defendant’s risk level under the Sex Offender Registration Act. Contrary to defendant’s argument, his acquittal of charges at his criminal trial relating to such conduct, does not foreclose the hearing court from finding, by clear and convincing evidence, that he engaged in such acts … .

From the dissent:

As this Court has recognized, the clear and convincing evidence standard is an exacting one … . “[T]he registration duties that SORA imposes are a nontrivial restriction on the individual’s liberty, and there is a material difference between having to register for ten years and having to register for life”… . In a case such as this, where the jury clearly had grave doubts about [the complainant’s] narrative, the courts below erred in concluding that her testimony was clear and convincing evidence of defendant having committed the sexual conduct necessary for an assessment of 25 points under risk factor two. People v Britton, 2018 NY Slip Op 02830, Ct App, 4-26-18

​CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT (SORA), ALLEGATIONS OF SEX OFFENSES OF WHICH DEFENDANT WAS ACQUITTED AT TRIAL PROPERLY USED IN THE SORA RISK ASSESSMENT CALCULATION (CT APP))/SEX OFFENDER REGISTRATION ACT (SORA) (ALLEGATIONS OF SEX OFFENSES OF WHICH DEFENDANT WAS ACQUITTED AT TRIAL PROPERLY USED IN THE SORA RISK ASSESSMENT CALCULATION (CT APP))/ACQUITTAL (SEX OFFENSES, SEX OFFENDER REGISTRATION ACT (SORA), ALLEGATIONS OF SEX OFFENSES OF WHICH DEFENDANT WAS ACQUITTED AT TRIAL PROPERLY USED IN THE SORA RISK ASSESSMENT CALCULATION (CT APP))

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JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL BY ASKING QUESTIONS OF WITNESSES AND INTERRUPTING CROSS-EXAMINATION (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the judge deprived defendant of a fair trial by asking questions of witnesses and interrupting cross-examination:

The principle restraining the court’s discretion is that a trial judge’s “function is to protect the record, not to make it” (… . Indeed, when the trial judge interjects often and indulges in an extended questioning of witnesses, even where those questions would be proper if they came from trial counsel, the trial judge’s participation presents significant risks of prejudicial unfairness … . Accordingly, while a trial judge may intervene in a trial to clarify confusing testimony and facilitate the orderly and expeditious progress of the trial, the court may not take on “the function or appearance of an advocate” … .

Here, the Supreme Court interjected itself into the questioning of witnesses more than 50 times, asking more than 400 questions. The court elicited step-by-step details from several officers regarding their observations and actions during their apprehension of the defendant. In addition, the court elicited and assisted in developing facts damaging to the defense on direct examination of the People’s witnesses, bolstering the witnesses’ credibility. The court also interrupted cross-examination and generally created the impression that it was an advocate on behalf of the People. People v Hinds, 2018 NY Slip Op 02804, Second Dept 4-25-18

​CRIMINAL LAW (JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL BY ASKING QUESTIONS OF WITNESSES AND INTERRUPTING CROSS-EXAMINATION (SECOND DEPT))/JUDGES (CRIMINAL LAW, JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL BY ASKING QUESTIONS OF WITNESSES AND INTERRUPTING CROSS-EXAMINATION (SECOND DEPT))

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