You are here: / Criminal Law
,

Criteria for Downward Departure from SORA Presumptive Risk Level

The Second Department described the criteria for a downward departure from the SORA presumptive risk level as follows: 

A court has the discretion to downwardly depart from the presumptive risk level in a proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA) only after a defendant makes a twofold showing. First, a defendant must identify, 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 [SORA] Guidelines” … . Second, a defendant must prove by a preponderance of the evidence the facts necessary to support the applicability of that mitigating factor … . In the absence of that twofold showing, the court lacks discretion to depart from the presumptive risk level … .  People v Arroyo, 2013 NY Slip Op 02553, 2010-10108, 2nd Dept, 4-17-13

 

,

In a Prohibition Proceeding Brought Under Article 78, Trial Judge’s Mistrial Order Deemed Improper, Retrial Precluded​

After a juror was discharged for misconduct, the People stated they did not want to go forward with the jury deliberations.  The defense, however, wanted to continue to verdict with the remaining 11 jurors.  The trial court ordered a mistrial.  The defendant brought an Article 78 proceeding seeking to prohibit a second trial on double jeopardy grounds.  The Second Department, after determining the four-month statute of limitations did not apply, granted the petition, finding the trial judge should not have ordered a mistrial over the defense objection:

Here, the People have not met their burden of demonstrating that the declaration of a mistrial was manifestly necessary. While it is undisputed that juror number 11 was grossly unqualified to continue serving, the court abused its discretion in declaring a mistrial without considering other alternatives. The defendant specifically indicated his desire to waive trial by a jury of 12 persons and proceed with the remaining 11 jurors, an option that has been endorsed by the Court of Appeals …. Under the circumstances presented, as urged by defense counsel, it would have been appropriate to poll the remainder of the jurors to ascertain whether they could render an impartial verdict …. Moreover, as the improper information imparted to the jurors did not significantly prejudice the People, the court should have considered whether a specific curative instruction could have clarified what constituted “evidence” and whether such an instruction could have cured the impropriety …. Accordingly, there is an insufficient basis in the record for the declaration of a mistrial, and thus retrial is precluded. Matter of Smith v Brown, 2013 NY Slip Op 02584, 2013-00751, 2nd Dept, 4-17-13

 

Hearing Required for Motion for Resentencing

The Second Department explained the hearing requirement of Criminal Procedure Law 440.46 (re: a motion for resentencing) as follows:

CPL 440.46(3), provides, in pertinent part, that “[t]he provisions of section twenty three of chapter seven hundred thirty eight of the laws of two thousand four shall govern the proceedings on and determination of a motion brought pursuant to this section.” Section 23 of chapter 738 of the Laws of 2004 states, in pertinent part: “The court shall offer an opportunity for a hearing and bring the applicant before it. The court may also conduct a hearing, if necessary, to determine . . . any controverted issue of fact relevant to the issue of sentencing.” The defendant’s presence is not required where the court determines as a matter of law that a defendant is not entitled to relief pursuant to CPL 440.46 …. However, here, the People conceded that the defendant met the statutory requirements for relief pursuant to CPL 440.46, and the question before the court was whether substantial justice dictated that the motion should be denied. Thus, the defendant is entitled to appear before the court and to be given an opportunity to be heard .. . Since the defendant was not brought before the court, and there is no indication that he knowingly, intentionally, and voluntarily relinquished that right …, the order appealed from must be reversed, and the matter remitted to the County Court, Suffolk County, for a new determination of the defendant’s motion, to be made after affording him an opportunity to appear before the court, and, if necessary, conducting a hearing … . People v Allen, 2013 NY slip Op 02586, 2011-11680, Ind No 1087/98, 2nd Dept 4-17-13

 

,

Conduct in Prison Justified Upward Departure (SORA)

The Third Department upheld the SORA court’s upward departure from the SORA guidelines based upon the defendant’s exhibitionist sexual conduct in prison.  The Third Department wrote:

Even if, under factor 13, defendant had been assessed the full 20 points for unsatisfactory conduct while confined “with sexual misconduct” (for a total of 55 points, still a presumptive level I), as he urges should have occurred instead of an upward departure, this factor still would not adequately take into consideration the public nature of this conduct and the use of children’s images  to facilitate his arousal. People v Walker, 513776, 3rd Dept, 4-11-13

 

 

,

Criteria for Motion to Vacate Based on Newly Discovered Evidence Explained

In upholding the trial court’s denial (without a hearing) of a 440 motion to vacate the defendant’s conviction based upon newly discovered evidence (i.e., a statement made by a juror to an investigator), the Third Department wrote:

Nor do we discern any error in County Court’s summary denial of that part of defendant’s motion that was based upon his claim of newly discovered evidence.  As relevant here, “[t]o justify vacatur under  CPL  440.10 (1) (g), the newly  discovered evidence ‘must . . . be  such  as will probably change the result if a new  trial is granted . . . [and] be  material to the issue'” …. A hearing is not necessary when the court can “adequately review the matter based upon the contents of the record and the motion papers”… .  People v Carter, 104989, 3rd Dept 4-11-13

 

 

,

New Factual Claim Made for the First Time at Trial by Defendant Triggered “Inconsistent Statements” Jury Charge; Prior Injuries to Child Admissible under Molineux

In this case the defendant was convicted of manslaughter in the death of a three-year-old child.  In his statement to the police, the defendant said the child fell while she was in the shower. At trial the defendant testified the child also fell on the stairs.  The trial court gave an “inconsistent statements” charge to the jury, finding it would have been reasonable and logical for the defendant to have mentioned the fall on the stairs in his statement to police.  In upholding the trial court, the Third Department wrote:

In its general instructions to the jury, County Court included a charge regarding a witness testifying to a fact that the witness omitted at a prior time when it would have been reasonable and logical to have stated the fact (see CJI2d[NY] Credibility of Witnesses  [Inconsistent Statements]).Defendant contends that this constituted error. Defendant had given a detailed voluntary statement to police regarding the pertinent events surrounding the victim’s death. He did not include in that statement an account of the victim purportedly falling on the stairs while coming to eat lunch, but he testified regarding such event at trial. Since it would be reasonable to expect defendant to mention all potential injuries sustained by the victim while in his care that day, including this charge did not constitute reversible error.

In addition, the Third Department found no error in the trial court’s allowing evidence of prior injuries revealed by the autopsy and two injuries incurred by the child when she was in defendant’s care.  This evidence of “similar uncharged crimes” was deemed admissible under Molineux to demonstrate “the absence of an accident” as the cause of the child’s injuries.  People v Tinkler, 103766, 3rd Dept 4-11-13

 

 

 

, ,

Guilty Plea Forfeits All Ineffective Assistance Claims Except those Relating to Plea Bargain

The Second Department noted that a guilty plea forfeits all ineffective assistance claims except those related to the plea-bargaining:
…[T]o the extent that the defendant’s claim of ineffective assistance of counsel does not directly involve the plea-bargaining process, it was forfeited upon his plea of guilty …. ​People v Barrett, 2013 NY Slip Op 02410, 2011-04637, Ind No 1727/10, 2nd Dept 4-10-13

 

Abuse of Discretion in Disallowing Jury Challenge Required Reversal of Conviction

In reversing a conviction because of the trial court’s refusal to consider an “untimely” peremptory challenge, the Second Department wrote:

During the second round of voir dire, after questioning of the second group of prospective jurors was completed and each side had exercised challenges for cause, the Supreme Court asked defense counsel if he wished to exercise any peremptory challenges, and defense counsel responded, “No.” Seconds later, as the court named the first three prospective jurors in the group to be assigned seats, defense counsel interrupted, apologizing, and explained that he had intended to exercise a peremptory challenge against one of the remaining prospective jurors in that group, prospective juror number four. Although that prospective juror was not yet assigned a seat and the reuest was made just moments after defense counsel mistakenly accepted all of the remaining prospective jurors in that group, the court denied defense counsel’s request to challenge that juror as untimely. Under these circumstances, where there was no discernable interference or undue delay caused by defense counsel’s momentary oversight, the Supreme Court improvidently exercised its discretion in denying defense counsel’s request to challenge the prospective juror …. Since a trial court’s improper denial of a peremptory challenge mandates automatic reversal …, we must reverse the conviction and order a new trial ….  People v Parrales, 2013 NY Slip Op 02417, 2011-05827, Ind No 1194/10, 2nd Dept 4-10-13

 

,

DeBour Criteria Met in Street Encounter Leading to Arrest; Statements Tainted by Miranda Violations Did Not Preclude Admission of Statement Made Seven Hours Later

In a full-fledged opinion by Justice Renwick, the First Department upheld the denial of defendant’s suppression motions.  After hearing gun shots police officers approached the defendant. After defendant answered a couple of questions he “began to place his hand in his back pocket.”  At that point, the officer grabbed defendant’s arm and told defendant he wanted to frisk the defendant before allowing him to reach in his pockets.  As the officer began to frisk the defendant, the defendant ran and was brought the ground.  A firearm, still warm, was taken from the defendant’s back pocket.   Written statements subsequently given by the defendant were suppressed by the trial court because of a Miranda violation.  A videotaped statement, made seven hours after the tainted written statements, was deemed admissible:

Prior to pleading guilty, defendant moved to suppress a gun, recovered from his pocket, and videotaped statements he made to the prosecution as fruits of an unlawful seizure. He also moved to suppress the statements as obtained in violation of his Miranda rights. We conclude that the facts disclosed in the record were such as to warrant a person of reasonable caution to believe that defendant was reaching for a weapon when the arresting officer grabbed his arm. We also find that defendant’s videotaped statements were not suppressible, notwithstanding the suppression of prior written statements made more than seven hours earlier to police officers, because the videotaped statements were attenuated by a “definite, pronounced break in the interrogation” … .  People v Davis, 2012 NY Slip Op 02337, 6129, 9270, 1st Dept 4-4-13

 

,

“Prompt Outcry” Exception to Hearsay Rule Applied to Complaint Made After Several Days

The Third Department determined the “prompt outcry” exception to the hearsay rule applied to a very young victim who complained about the incident after several days:

Under the prompt outcry rule, “evidence that a victim of sexual assault promptly complained about the incident is admissible to corroborate the allegation that an assault took place” … . “‘[P]romptness is a relative concept  dependent  on  the  facts — what  might  qualify as  prompt  in one  case might  not in another'” ….   Here, the sexual contact occurred over a weekend during which the victim was in the care of defendant’s mother. The victim returned to his mother’s care on a Sunday and disclosed the events to her on the following Friday. Considering  the  victim’s young age and  the  familial relationship between  the victim and defendant, we  agree with County Court’s determination  that  the  hearsay  statements  fell within the prompt  outcry rule …, and  the court provided an  appropriate instruction limiting the use of the testimony … .  People v Lapi, 104623, 3rd Dept 4-4-13

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy