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WAIVER OF APPEAL INVALID (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined defendant’s waiver of the right to appeal was insufficient:

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We agree with defendant that his waiver of the right to appeal was not valid because, during the plea colloquy, County Court “conflated the appeal waiver with the rights automatically waived by the guilty plea” … . The court indicated that the waiver of the right to appeal was “[o]ne other condition,” and that statement “was immediately preceded by a colloquy concerning the rights automatically forfeited by a guilty plea”… . In addition, the court further muddied the distinction by indicating that the waiver of the right to appeal “is separate and part [sic] from your plea of guilty,” rather than indicating that it was a condition of the guilty plea but separate from the rights that defendant automatically forfeited by the plea … . Consequently, ” the record fails to establish that defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ “… . People v Smith, 2017 NY Slip Op 08949, Fourth Dept 12-22-17

CRIMINAL LAW (WAIVER OF APPEAL INVALID (FOURTH DEPT))/APPEALS (CRIMINAL LAW, WAIVER OF APPEAL INVALID (FOURTH DEPT))

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DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, QUESTIONS SUFFICIENTLY RAISED ABOUT WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INTERVIEW ALIBI WITNESSES AND DEFENDANT’S ACTUAL INNOCENCE (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant’s motion to vacate his conviction should not have been denied without a hearing. The affidavits in support of the motion raised a question whether defense counsel was ineffective for failing to interview alibi witnesses and sufficiently raised a claim of actual innocence:

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We agree with the contention of defendant in his main and supplemental pro se briefs that he was entitled to a hearing on his claims of ineffective assistance of counsel and actual innocence. With respect to defendant’s claim of ineffective assistance of counsel, we conclude that nonrecord facts may support defendant’s contention that his trial counsel failed to investigate two potential alibi witnesses and was ineffective in failing to present the testimony of one or both of those witnesses. It is well settled that “[a] defendant’s right to effective assistance of counsel includes defense counsel’s reasonable investigation and preparation of defense witnesses” … . Here, defendant’s CPL 440.10 motion was supported by the police investigation report, which demonstrated that the alibi witnesses had been interviewed by the police and made statements supporting defendant’s alibi. We note that the police report was annexed to the People’s CPL 710.30 notice.

In addition, defendant submitted his own affidavit and an affidavit from one of the alibi witnesses likewise asserting facts supporting defendant’s alibi claim. While a hearing may ultimately reveal that “counsel made reasonably diligent efforts to locate the [alibi] witness[es]” and present their testimony at trial … , or that there was a strategic reason for the failure to do so… , we agree with defendant that his submissions raised factual issues requiring a hearing … .

Additionally, we conclude that County Court erred in denying defendant’s motion without holding a hearing to address defendant’s claim that the judgment of conviction should be vacated pursuant to CPL 440.10 (1) (h) based on his actual innocence of the crimes of which he was convicted… . We conclude that defendant made a prima facie showing of actual innocence sufficient to warrant a hearing on the merits … . Specifically, in support of his claim of actual innocence, he submitted competent evidence establishing an alibi through, inter alia, witnesses who, although identified before trial in a police report attached to the People’s 710.30 notice, did not testify at trial. People v Pottinger, 2017 NY Slip Op 08972, Fourth Dept 12-22-17

 

CRIMINAL LAW (DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, QUESTIONS SUFFICIENTLY RAISED ABOUT WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INTERVIEW ALIBI WITNESSES AND DEFENDANT’S ACTUAL INNOCENCE (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, QUESTIONS SUFFICIENTLY RAISED ABOUT WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INTERVIEW ALIBI WITNESSES AND DEFENDANT’S ACTUAL INNOCENCE (FOURTH DEPT))/VACATE CONVICTION, MOTION TO (DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, QUESTIONS SUFFICIENTLY RAISED ABOUT WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INTERVIEW ALIBI WITNESSES AND DEFENDANT’S ACTUAL INNOCENCE (FOURTH DEPT))/INEFFECTIVE ASSISTANCE (DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, QUESTIONS SUFFICIENTLY RAISED ABOUT WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INTERVIEW ALIBI WITNESSES AND DEFENDANT’S ACTUAL INNOCENCE (FOURTH DEPT))/ACTUAL INNOCENCE  (DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, QUESTIONS SUFFICIENTLY RAISED ABOUT WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INTERVIEW ALIBI WITNESSES AND DEFENDANT’S ACTUAL INNOCENCE (FOURTH DEPT))

82 YEAR SENTENCE FOR THREE BURGLARIES AND RECKLESS ENDANGERMENT DEEMED TOO HARSH FOR THIS PERSISTENT FELONY OFFENDER, REDUCED TO 35 YEARS TO LIFE (FOURTH DEPT).

The Fourth Department affirmed defendant’s burglary and reckless endangerment convictions and was  properly determined to be a persistent violent felony offender. However, the aggregate sentence of 82 years to life was deemed too harsh and was reduced to 35 years to life. People v Barnes, 2017 NY Slip Op 09004, Fourth Dept 12-22-17

CRIMINAL LAW (82 YEAR SENTENCE FOR THREE BURGLARIES AND RECKLESS ENDANGERMENT DEEMED TOO HARSH FOR THIS PERSISTENT FELONY OFFENDER, REDUCED TO 35 YEARS TO LIFE (FOURTH DEPT))/SENTENCING (82 YEAR SENTENCE FOR THREE BURGLARIES AND RECKLESS ENDANGERMENT DEEMED TOO HARSH FOR THIS PERSISTENT FELONY OFFENDER, REDUCED TO 35 YEARS TO LIFE (FOURTH DEPT))

FAILURE TO INFORM DEFENDANT OF THE PERIOD OF POSTRELEASE SUPERVISION FOR ONE COUNT INFECTED THE PLEAS TO THE OTHER COUNTS AS WELL (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty pleas, determined that the failure to inform the defendant of the period of postrelease supervision for one count infected the pleas to the other counts as well:

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Defendant appeals from a judgment convicting her upon her plea of guilty of three counts of kidnapping in the second degree … and one count of criminal possession of a weapon in the second degree … . During the plea colloquy, County Court indicated that it would sentence defendant to concurrent indeterminate terms of 3 to 6 years pursuant to Penal Law § 60.12. Section 60.12 allows a court to impose indeterminate terms of imprisonment for certain defendants who are facing determinate terms of sentences under section 70.02 if the defendant has been the victim of domestic abuse. The court here in fact imposed concurrent, indeterminate terms of 3 to 6 years pursuant to section 60.12 (2) (a) for the kidnapping counts, but imposed a concurrent determinate sentence of 3½ years with 5 years of postrelease supervision on the weapon count pursuant to sections 70.02 (3) (b) and 70.45 (2) (f).

The People correctly concede that the court failed to fulfill its obligation to advise defendant at the time of her plea that the sentence imposed upon her conviction of the weapon count would include a period of postrelease supervision… . We therefore reverse the judgment and vacate defendant’s plea … . Contrary to the People’s contention, under the circumstances of this case, the entire plea must be vacated and not merely the plea on the weapon count. The entire plea agreement was infected by the court’s error in failing to advise defendant of postrelease supervision, and this is not a case in which the counts may be treated separately … . People v Maxwell, 2017 NY Slip Op 08986, Fourth Dept 12-22-17

 

CRIMINAL LAW (FAILURE TO INFORM DEFENDANT OF THE PERIOD OF POSTRELEASE SUPERVISION FOR ONE COUNT INFECTED THE PLEAS TO THE OTHER COUNTS AS WELL (FOURTH DEPT))/SENTENCING (FAILURE TO INFORM DEFENDANT OF THE PERIOD OF POSTRELEASE SUPERVISION FOR ONE COUNT INFECTED THE PLEAS TO THE OTHER COUNTS AS WELL (FOURTH DEPT))/POSTRELEASE SUPERVISION (FAILURE TO INFORM DEFENDANT OF THE PERIOD OF POSTRELEASE SUPERVISION FOR ONE COUNT INFECTED THE PLEAS TO THE OTHER COUNTS AS WELL (FOURTH DEPT))/GUILTY PLEA, MOTION TO VACATE  (FAILURE TO INFORM DEFENDANT OF THE PERIOD OF POSTRELEASE SUPERVISION FOR ONE COUNT INFECTED THE PLEAS TO THE OTHER COUNTS AS WELL (FOURTH DEPT))

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DEFENDANT PROPERLY ASSESSED 80 POINTS FOR CHILD PORNOGRAPHY IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK LEVEL PROCEEDING, CRITERIA EXPLAINED, DETERMINATION REVERSED HOWEVER BECAUSE COUNTY COURT DID NOT CONSIDER DOWNWARD DEPARTURE REQUEST (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant’s request for a downward departure in this Sex Offender Registration Act (SORA) risk level assessment should have been considered. Defendant was properly assessed 80 points in this child pornography case:

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The Court of Appeals has noted that “the children depicted in child pornography are necessarily counted as victims under [risk] factor 3, and nothing in that factor’s plain terms suggests otherwise. After all, factor 3 permits the assessment of 30 points [where, as here,] [t]here were three or more victims’ involved in a defendant’s current sex crime” … . The Court of Appeals has also made it clear that “the plain terms of [risk] factor 7 authorize the assessment of points based on a child pornography offender’s stranger relationship with the children featured in his or her child pornography files, and thus points can be properly assessed under that factor due to an offender’s lack of prior acquaintance with the children depicted in the files” … . Here, the People established by clear and convincing evidence that the children depicted in the images on defendant’s computer were strangers to defendant. Consequently, the court properly concluded that “defendant should be assessed 30 points under risk factor 3, number of victims,’ based on the numerous child victims depicted in the images he possessed . . . and 20 points under risk factor 7, relationship with victim, stranger,’ [inasmuch] as defendant did not know his child victims.”

We agree with defendant, however, that the court erred in failing to consider his request for a downward departure from the presumptive level two risk yielded by his 80-point total score on the risk assessment instrument … .. We therefore reverse the order and remit the matter to County Court for a determination of whether defendant met his “initial burden of (1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence’ ” …  and, if so, for the court to exercise its discretion whether to grant defendant’s request for a downward departure … . People v Tutty, 2017 NY Slip Op 09029, Fourth Dept 12-22-17

CRIMINAL LAW (SORA, DEFENDANT PROPERLY ASSESSED 80 POINTS FOR CHILD PORNOGRAPHY IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK LEVEL PROCEEDING, DETERMINATION REVERSED HOWEVER BECAUSE COUNTY COURT DID NOT CONSIDER DOWNWARD DEPARTURE REQUEST (FOURTH DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (DEFENDANT PROPERLY ASSESSED 80 POINTS FOR CHILD PORNOGRAPHY IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK LEVEL PROCEEDING, DETERMINATION REVERSED HOWEVER BECAUSE COUNTY COURT DID NOT CONSIDER DOWNWARD DEPARTURE REQUEST (FOURTH DEPT))/DOWNWARD DEPARTURE (SORA, DEFENDANT PROPERLY ASSESSED 80 POINTS FOR CHILD PORNOGRAPHY IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK LEVEL PROCEEDING, DETERMINATION REVERSED HOWEVER BECAUSE COUNTY COURT DID NOT CONSIDER DOWNWARD DEPARTURE REQUEST (FOURTH DEPT))

DEFENDANT’S REQUEST FOR A DARDEN HEARING SHOULD HAVE BEEN GRANTED, PEOPLE DID NOT DEMONSTRATE INFORMANT WAS LEGITIMATELY UNAVAILABLE (FOURTH DEPT).

The Fourth Department determined defendant’s request for a Darden hearing should not have been denied. The People did not demonstrate the informant who provided information to support a search warrant application was legitimately unavailable for the hearing:

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Where, as here, there is insufficient evidence to establish probable cause supporting a search warrant without the statements of a confidential informant, the People must make the informant available for questioning in camera … . If, however, the informant cannot be produced despite the diligent efforts of the People, “the People may instead establish the existence of [the] confidential informant[] through extrinsic evidence’ after demonstrating that the informant is legitimately unavailable’ ” … . Here, the court summarily denied defendant’s request upon the People’s bare assertion that the informant was in California and thus unavailable. Although the People subsequently produced an unsworn letter, purportedly from the informant’s drug treatment facility in California, stating that the informant required uninterrupted care, that letter, without more, is insufficient to demonstrate that the informant was legitimately unavailable. We conclude that the People failed to establish that an exception to the Darden rule is applicable, and thus the court erred in denying defendant’s request for a Darden hearing … . We therefore hold the case, reserve decision, and remit the matter to County Court to conduct an appropriate hearing, at which the People will not be precluded from offering evidence that the informant is currently unavailable. People v Givans, 2017 NY Slip Op 09066, Fourth Dept 12-22-17

 

CRIMINAL LAW (DARDEN HEARING, DEFENDANT’S REQUEST FOR A DARDEN HEARING SHOULD HAVE BEEN GRANTED, PEOPLE DID NOT DEMONSTRATE INFORMANT WAS LEGITIMATELY UNAVAILABLE (FOURTH DEPT))/DARDEN HEARING (CRIMINAL LAW, DEFENDANT’S REQUEST FOR A DARDEN HEARING SHOULD HAVE BEEN GRANTED, PEOPLE DID NOT DEMONSTRATE INFORMANT WAS LEGITIMATELY UNAVAILABLE (FOURTH DEPT))/SEARCH AND SEIZURE (DARDEN HEARING, DEFENDANT’S REQUEST FOR A DARDEN HEARING SHOULD HAVE BEEN GRANTED, PEOPLE DID NOT DEMONSTRATE INFORMANT WAS LEGITIMATELY UNAVAILABLE (FOURTH DEPT))

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DEFENDANT’S CONVICTION SUPPORTED BY THE WEIGHT OF THE EVIDENCE, DETAILED DISCUSSION OF THE WEIGHT OF THE EVIDENCE ANALYSIS, DISSENT DISAGREED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kahn, over a two-justice dissenting opinion, determined that defendant’s conviction in this murder case was supported by the weight of the evidence. The dissent argued that defendant’s videotaped statement supported the justification defense and no other evidence presented by the People refuted it. The opinion includes a comprehensive discussion of the appellate court’s weight of the evidence analysis:

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Weight of the evidence review involves a two-step approach. (People v Romero, 7 NY3d 633, 643 [2006]). First, the Court must determine whether, based on all the credible evidence, an acquittal would not have been unreasonable (id.; People v Bleakley, 69 NY2d 490, 495 [1987]). If so, then the appellate court must weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony … . That step is performed by weighing the evidence against the elements as charged to the jury … . The evidence must be of such weight and credibility as to convince the Court that the jury’s finding of the defendant’s guilt beyond a reasonable doubt was justified … . * * *

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Viewing all of the record evidence in light of the first prong of the Romero-Bleakley standard, had the jury credited defendant’s account of the events surrounding the shooting, it could have reasonably found that defendant was, as the trial court instructed, “justified in the use of deadly physical force, . . . hav[ing] honestly believed that it was necessary to defend himself from what he honestly believed to be the use or imminent use of such force by Steven Mari and [that] a reasonable person in the defendant’s position, knowing what the defendant knew, and being in the same circumstances would have believed that too.” Thus, had the jury credited defendant’s statement, it would not have been unreasonable for the jury to have acquitted defendant … .

Turning to the second step of the Romero-Bleakley analysis, at the outset, there is no basis for disturbing the jury’s rejection of defendant’s videotaped statement. Defendant’s statements … were materially inconsistent, and defied credulity. People v Sanchez, 2017 NY Slip Op 08899, First Dept 12-21-17

 

CRIMINAL LAW (WEIGHT OF THE EVIDENCE, DEFENDANT’S CONVICTION SUPPORTED BY THE WEIGHT OF THE EVIDENCE, DETAILED DISCUSSION OF THE WEIGHT OF THE EVIDENCE ANALYSIS, DISSENT DISAGREED (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, WEIGHT OF THE EVIDENCE, DEFENDANT’S CONVICTION SUPPORTED BY THE WEIGHT OF THE EVIDENCE, DETAILED DISCUSSION OF THE WEIGHT OF THE EVIDENCE ANALYSIS, DISSENT DISAGREED (FIRST DEPT))/APPEALS (CRIMINAL LAW, WEIGHT OF THE EVIDENCE, DEFENDANT’S CONVICTION SUPPORTED BY THE WEIGHT OF THE EVIDENCE, DETAILED DISCUSSION OF THE WEIGHT OF THE EVIDENCE ANALYSIS, DISSENT DISAGREED (FIRST DEPT))/WEIGHT OF THE EVIDENCE (CRIMINAL LAW, APPEALS, DEFENDANT’S CONVICTION SUPPORTED BY THE WEIGHT OF THE EVIDENCE, DETAILED DISCUSSION OF THE WEIGHT OF THE EVIDENCE ANALYSIS, DISSENT DISAGREED (FIRST DEPT))

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GRAND JURY EVIDENCE OF SERIOUS PHYSICAL INJURY PRESENTED THROUGH THE VICTIM’S TESTIMONY WAS SUFFICIENT, PROSECUTORIAL MISCONDUCT DURING THE GRAND JURY PROCEEDINGS WARRANTED DISMISSAL OF THE INDICTMENT (FOURTH DEPT).

The Fourth Department determined the evidence of serious physical injury, an element of the gang assault charge, was supported by sufficient evidence presented to the grand jury. However, prosecutorial misconduct during the grand jury proceedings warranted dismissal of the indictment (the People may represent however):

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We agree with the People that the evidence before the grand jury was legally sufficient to establish that the victim sustained a serious physical injury. While the medical records introduced in evidence were uncertified and were thus hearsay, the victim himself was competent to testify to “readily apparent external physical injuries of which he obviously [had] personal knowledge” … .

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We agree with the court, however, that the prosecutor engaged in a pervasive pattern of improper conduct at the grand jury proceeding that warranted dismissal of the indictment on the ground that the integrity of the proceeding was impaired … .. The prosecutor acted improperly in repeatedly asking leading questions of his witnesses … , and in introducing hearsay evidence … . During his cross-examination of defendants, the prosecutor improperly asked them whether other witnesses were lying … ., and he asked Blauvelt, without any evident good faith basis, whether defendants used illegal drugs on the night of the altercation and whether they used steroids in general … .. “Most egregiously,” as described by the court, the prosecutor acted as an unsworn witness by stating personal opinions relevant to material issues during his instructions to the grand jury, i.e., that younger people are more likely than older people to start fights, and that the victim’s injuries must have resulted from “a substantial beating” … . We remind the People that a prosecutor owes “a duty of fair dealing to the accused” at a grand jury proceeding and, more generally, that a prosecutor “serves a dual role as advocate and public officer,” and must “not only . . . seek convictions but [must] also . . . see that justice is done” … . People v Blauvelt, 2017 NY Slip Op 08948, Fourth Dept 12-21-17

 

CRIMINAL LAW (GRAND JURY EVIDENCE OF SERIOUS PHYSICAL INJURY PRESENTED THROUGH THE VICTIM’S TESTIMONY WAS SUFFICIENT, PROSECUTORIAL MISCONDUCT DURING THE GRAND JURY PROCEEDINGS WARRANTED DISMISSAL OF THE INDICTMENT (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, GRAND JURY, PROSECUTORIAL MISCONDUCT DURING THE GRAND JURY PROCEEDINGS WARRANTED DISMISSAL OF THE INDICTMENT (FOURTH DEPT))/PROSECUTORIAL MISCONDUCT (MISCONDUCT DURING THE GRAND JURY PROCEEDINGS WARRANTED DISMISSAL OF THE INDICTMENT (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, GRAND JURY, SERIOUS PHYSICAL INJURY, GRAND JURY EVIDENCE OF SERIOUS PHYSICAL INJURY PRESENTED THROUGH THE TESTIMONY OF THE VICTIM WAS SUFFICIENT (FOURTH DEPT))

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SEALED LOCAL GOVERNMENT RECORDS PROPERLY UNSEALED FOR CONSIDERATION IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING (SECOND DEPT).

The Second Department determined sealed records were properly unsealed in this sex offender civil commitment hearing:

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The Supreme Court properly granted the State’s motion to unseal the records kept by the Office of the Suffolk County District Attorney and the Suffolk County Police Department regarding the defendant’s 2001 arrest for rape in the first degree. Mental Hygiene Law § 10.08(c) provides, “Notwithstanding any other provision of law, the commissioner, the case review panel and the attorney general shall be entitled to request from any agency, office, department or other entity of the state, and such entity shall be authorized to provide upon request, any and all records and reports relating to the respondent’s commission or alleged commission of a sex offense, the institutional adjustment and any treatment received by such respondent, and any medical, clinical or other information relevant to a determination of whether the respondent is a sex offender requiring civil management.” “The primary goal of the court in interpreting a statute is to determine and implement the Legislature’s intent”… . Given the legislative purpose underlying Mental Hygiene Law § 10.08(c), we have construed this statute to permit authorized parties to obtain records from local government entities in addition to State entities … . Matter of State of New York v David B., 2017 NY Slip Op 08831, Second Dept 12-20-17

 

MENTAL HYGIENE LAW (SEX OFFENDERS, CIVIL COMMITMENT, SEALED LOCAL GOVERNMENT RECORDS PROPERLY UNSEALED FOR CONSIDERATION IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING (SECOND DEPT))/EVIDENCE (MENTAL HYGIENE LAW, SEX OFFENDERS, SEALED LOCAL GOVERNMENT RECORDS PROPERLY UNSEALED FOR CONSIDERATION IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING (SECOND DEPT))/MUNICIPAL LAW (SEALED RECORDS, MENTAL HYGIENE LAW, SEX OFFENDERS,  SEALED LOCAL GOVERNMENT RECORDS PROPERLY UNSEALED FOR CONSIDERATION IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING (SECOND DEPT))/SEALED RECORDS SEX OFFENDERS, CIVIL COMMITMENT, SEALED LOCAL GOVERNMENT RECORDS PROPERLY UNSEALED FOR CONSIDERATION IN THIS SEX OFFENDER CIVIL COMMITMENT PROCEEDING (SECOND DEPT))

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DEFENDANT WAS NOT AFFORDED EFFECTIVE COUNSEL AT THE SORA RISK LEVEL HEARING, COUNSEL DID NOT ADVOCATE FOR HIM AND DID NOT UNDERSTAND DOWNWARD DEPARTURE WAS AVAILABLE, NEW HEARING ORDERED (SECOND DEPT).

The Second Department determined defendant was entitled to a new Sex Offender Registration Act (SORA) risk level hearing because his attorney did not advocate his position and did not understand the availability of downward departure:

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A defendant has a right to the effective assistance of counsel in a SORA proceeding … . Here, the defendant’s counsel “failed to litigate any aspect of the adjudication” … , and, instead, affirmatively asserted that there was no basis on which to challenge or depart from the presumptive risk level. Moreover, defense counsel’s comments suggested that there was no basis for a downward departure because the points “add[ed] up validly,” thus demonstrating a misunderstanding of the law regarding downward departures from the presumptive risk level … . These facts, as well as defense counsel’s failure to seek a downward departure under the circumstances of this case, operated to deprive the defendant of meaningful representation in the SORA proceeding … . People v Collins, 2017 NY Slip Op 08866, Second Dept 12-20-17

 

CRIMINAL LAW (SORA, DEFENDANT WAS NOT AFFORDED EFFECTIVE COUNSEL AT THE SORA RISK LEVEL HEARING, COUNSEL DID NOT ADVOCATE FOR HIM AND DID NOT UNDERSTAND DOWNWARD DEPARTURE WAS AVAILABLE, NEW HEARING ORDERED (SECOND DEPT))/ATTORNEYS (CRIMINAL LAW, SORA HEARING, DEFENDANT WAS NOT AFFORDED EFFECTIVE COUNSEL AT THE SORA RISK LEVEL HEARING, COUNSEL DID NOT ADVOCATE FOR HIM AND DID NOT UNDERSTAND DOWNWARD DEPARTURE WAS AVAILABLE, NEW HEARING ORDERED (SECOND DEPT))/INEFFECTIVE ASSISTANCE (SORA, DEFENDANT WAS NOT AFFORDED EFFECTIVE COUNSEL AT THE SORA RISK LEVEL HEARING, COUNSEL DID NOT ADVOCATE FOR HIM AND DID NOT UNDERSTAND DOWNWARD DEPARTURE WAS AVAILABLE, NEW HEARING ORDERED (SECOND DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (ATTORNEYS, INEFFECTIVE ASSISTANCE, DEFENDANT WAS NOT AFFORDED EFFECTIVE COUNSEL AT THE SORA RISK LEVEL HEARING, COUNSEL DID NOT ADVOCATE FOR HIM AND DID NOT UNDERSTAND DOWNWARD DEPARTURE WAS AVAILABLE, NEW HEARING ORDERED (SECOND DEPT))

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