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SORA Proof Burdens Explained

The Third Department noted the different proof burdens for a SORA classification hearing versus a modification hearing:

The People concede that defendant is entitled to a new hearing because Supreme Court treated the 2005 rehearing as one for modification, as opposed to classification (compare Correction Law § 168-n, with Correction Law § 168-o).   As the People now acknowledge, they bore the burden of establishing the determination sought by clear and convincing evidence … .  Inasmuch as the record here reflects that the burden was placed on defendant to demonstrate sufficient evidence warranting a departure from the risk level III classification (see Correction Law § 168-o [2]), we remit for a new hearing … . People v Middlemiss, 511311, 3rd Dept, 4-25-13

 

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Convictions Based Entirely Upon Confession Reversed; Error to Allow Experiment in Evidence; Proof of Victim’s Helplessness Sufficient

In this sexual-crimes case, the Third Department discussed (among other issues): (1) the application of speedy trial rules when an initial indictment is dismissed and then charges stemming from the same incident are brought more than six months later in a second indictment; (2) the sufficiency of proof of the victim’s helplessness (intoxication); and (3) the inadmissibility of an experiment (opening a door with a credit card to demonstrate how defendant could have entered the house) which had nothing to do with the trial evidence.  All but two of the convictions were affirmed.  In reversing the two convictions which were based entirely on the defendant’s confession, the Third Department wrote:

We find that defendant’s convictions of criminal sexual act in the first degree must  be  reversed. “A person may not be convicted of any offense solely upon evidence of a confession or admission made by him [or her] without additional proof that the offense charged  has been  committed”  (CPL 60.50). While this additional proof “need  not corroborate every detail of the confession” …, both  of defendant’s criminal sexual act convictions were based solely upon his uncorroborated admissions that he  performed  oral sex on the victim. Defendant’s presence at the scene did not provide the necessary corroboration because the issue is not his identity or connection to the crime but, instead, whether  the crimes  occurred  at all. As there was no corroborating proof “of whatever weight,” these charges must be dismissed… . People v Bjork, 104014, 3rd Dept, 4-25-13

 

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Fact that Defendant Was Seen With a .25 Caliber Handgun Two and a Half Months Before Charged Shooting Allowed In Evidence to Prove “Identity”

The defendant was convicted of shooting the victim with a .25 caliber handgun.  Under Molineux, the prosecution was allowed to present evidence that the defendant, two and a half months before, was seen brandishing a .25 caliber handgun.  The trial court determined this “prior crime” evidence was admissible to prove the identity of the shooter.  The Third Department affirmed with a strong dissent.  The quotation below, which is from the dissent, outlines one of the elements of a Molineux analysis of prior-crime evidence to prove identity:

[THE FOLLOWING QUOTATION IS FROM THE DISSENT]

The mere fact that defendant was allegedly seen with a .25 caliber weapon on an occasion over two months prior to the crime does not reveal any unique and distinctive modus operandi, nor a “distinctive repetitive pattern”  … . The only behavior described was the act of pulling out a gun – there is nothing unique or distinctive about this act, standing alone – and the weapon was not fired during the alleged earlier incident. Defendant’s mere presence in the same place twice is certainly not unusual, as other people were also present on both occasions. There was simply no evidence that might be considered “‘so unique that the mere proof that . . . defendant had committed a similar act would be highly probative of the fact that he committed the one charged'” … .  People v Myers, 104004, 3rd Dept, 4-25-13

 

 

 

Independent Reason for Incarceration Precludes Habeas Corpus Relief

In affirming the dismissal of a habeas corpus petition, the Third Department noted that even where the basis for the petition is valid (here there was no preliminary hearing for a parole violation) habeas relief is not available if there is an independent basis for continued incarceration (here an indictment for the offense underlying the parole violation):

Regardless of the merits of petitioner’s claim that he was deprived of a preliminary hearing, an independent basis for his parole revocation exists given his conviction upon the count charged in the indictment (see Executive Law § 259-i [3] [d] [iii]…). Petitioner is thus not entitled to immediate release, rendering habeas corpus relief unavailable … .  People ex rel Wiggins v Schiff, 515008, Third Dept 4-25-13

 

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Restitution Can Not Be Ordered When Not Addressed in Plea Agreement

The Second Department, in the interest of justice, determined the sentencing court should not have imposed restitution because restitution was not addressed in the plea agreement.  The matter was remitted for re-sentencing without restitution. People v Thompson, 2013 NY Slip Op 02770, 2nd Dept, 4-24-13

 

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Failure to Follow Statutory Procedure Re: Notes Sent Out By Jury Is a “Mode of Proceedings” Error Requiring Reversal

In reversing a conviction because the trial court committed a “mode of proceedings” error (not requiring preservation) by not following the procedure mandated in Criminal Procedure Law 310.30 (re: notes sent out by the jury during deliberations), the Second Department explained:

“Specifically, the Court of Appeals has held that whenever a substantive written jury communication is received by the Judge,’ it should be read into the record in the presence of counsel,’ and that, [a]fter the contents of the inquiry are placed on the record, counsel should be afforded a full opportunity to suggest appropriate responses'” … . These requirements were not satisfied here.People v Fenton, 2013 NY Slip Op 02761, 2nd Dept, 4-24-13

 

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Conviction Reversed Because of Improper Cross-Examination by Prosecutor; Defendant Questioned About Boyfriend’s Criminal History and Her Employment History

The First Department reversed a conviction because of the prosecutor’s improper cross-examination of the defendant.  The defendant was accused of smuggling a knife to her boyfriend while he was incarcerated.  The defendant was cross-examined about her boyfriend’s gang membership and criminal history and defendant’s periods of unemployment (among other improper topics).  In addressing the cross-examination about defendant’s boyfriend’s criminal history, the First Department wrote:

The criminal history of defendant’s boyfriend was irrelevant to whether defendant “knowingly and unlawfully introduce[d] any dangerous contraband into a detention facility” … . The fact that Wright was a gang member with an extensive criminal history has no bearing on whether or not defendant knew she was introducing dangerous contraband into the facility, and could only serve to inflame the jury and prejudice defendant. As defendant correctly argues, this evidence served “no purpose but to suggest that defendant was associated with a disreputable person” … .People v Bartholomew, 2013 NY Slip Op 02699, 1st Dept, 4-23-13

PROSECUTORIAL MISCONDUCT

Sentences for Underlying Felony and Bail Jumping Must Be Consecutive Absent Mitigating Factors that Bear Directly on the Manner the Crime Was Committed

In finding the sentencing court used the wrong “mitigating” factors to determine whether the sentence for bail jumping could run concurrently with the sentence for the underlying felony, the Third Department wrote:

Penal Law § 70.25 (2-c) restricts a court’s sentencing discretion when a person who is convicted of bail jumping in the second  degree  also is convicted of the underlying felony in connection with which he or she had been released on bail. Specifically, if indeterminate sentences are imposed upon both the bail jumping charge and the underlying felony, the bail jumping sentence must run consecutively to the other sentence unless the court “finds mitigating circumstances that bear directly upon the manner in which the crime was committed” (Penal Law § 70.25 [2-c]…).  Here, County Court sought to justify concurrent sentences based upon “the severe penalties, fines, restrictions and state prison sentence [defendant was] earning by [his] antisocial behavior of drinking and driving and failing to come to court, and because [he had pleaded] guilty . . . and waived appeal in another county.” However, these factors have no bearing upon the manner in which the crime was committed … and, therefore, do not support imposing concurrent sentences in this case.  People v Harrison, 105176, 3rd Dept 4-18-22

 

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Inmate Should Not Have Been Required to Document His Native American Ancestry In Order to Practice His Religion

In annulling a determination by the Central Office Review Committee (CORC) that the petitioner (an inmate) must document his Native American ancestry before he will be allowed to practice his religion, the Third Department wrote:

It has been recognized that correction officials may impose restrictions on the religious practices of inmates provided that such restrictions are reasonably related to legitimate penological interests … .Respondents candidly concede, and we agree, that CORC failed to articulate or otherwise identify any legitimate penological interest reasonably served by the documentation requirement. Consequently, we conclude that the determinations at issue are arbitrary, capricious and  without a rational basis… .  Matter of Santiago, 514317, 3rd Dept, 4-18-13

 

 

 

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Breath Test Results Suppressed Because Defendant Not Informed Her Attorney Had Appeared in the Case Prior to the Test

In a full-fledged opinion by Justice Leventhal, the Second Department affirmed the suppression of a chemical breath-test because the police did not inform the defendant her attorney had appeared in the case before the test was administered.  As Justice Leventhal described the “right to counsel” issue and holding:

This case calls upon us to address a matter of first impression involving the right to counsel under the New York Constitution (see NY Const, art I, § 6), where the defendant consented to a chemical breath test to determine her blood alcohol content (hereinafter BAC), but, prior to the commencement of the test, the police made no effort to inform the defendant that her attorney had appeared in the matter. … [W]e hold that where, as here, the police are aware that an attorney has appeared in a case before the chemical breath test begins, they must make reasonable efforts to inform the motorist of counsel’s appearance if such notification will not substantially interfere with the timely administration of the test. Since the People failed to establish that notifying the defendant of her attorney’s appearance would, in fact, have interfered with the timely administration of the chemical breath test, we conclude that the Supreme Court properly granted that branch of her omnibus motion which was to suppress the results of that test. People v Washington, 2013 NY Slip Op 02600, 2011-07259, Ind No 2510/10, 2nd Dept, 4-17-13

SUPPRESS

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