You are here: / Criminal Law
,

Disorderly Conduct as a Family Offense Needn’t Occur in a Public Place

The Fourth Department determined that “disorderly conduct” as a family offense does not require the conduct to take place in public:

Contrary to respondent’s contention, petitioner met her burden of establishing by a preponderance of the evidence that respondent committed the family offense of disorderly conduct … . Although respondent’s conduct did not take place in public, section 812 (1) specifically states that, “[f]or purposes of this article, ‘disorderly conduct’ includes disorderly conduct not in a public place.” In addition, disorderly conduct may be committed when a person “recklessly creat[es] a risk” of annoyance or alarm through violent or threatening behavior. We thus reject respondent’s contention that the statute “requires more than a ‘risk.’ ”  Matter of McLaughlin v McLaughlin, 330, CAF 12-01556, 4th Dept. 3-22-13

 

 

,

SORA Finding Reduced Twenty Points—No Evidence or Findings Re: Targeting of Victim

The Fourth Department determined the People did not present sufficient evidence defendant targeted the victim and the SORA court did not set forth the relevant findings of fact and conclusions of law.  Therefore the SORA score was reduced by 20 points:

At the SORA hearing, the People had “the burden of proving the facts supporting the [risk level classification] sought by clear and convincing evidence” … . Here, the People failed to meet their burden of establishing that defendant “established or promoted” his relationship with the victim “for the primary purpose of victimization” (Sex Offender Registration Act…) ..The People presented no evidence that defendant, who met the victim at a party, targeted the victim for the primary purpose of victimizing her …. As a result of the court’s error, defendant’s score on the risk assessment instrument must be reduced by 20 points, and thus he should be presumptively classified as a level two risk.  We therefore modify the order accordingly.

We note in any event that we agree with defendant that the court failed to comply with Correction Law § 168-n (3), inasmuch as it failed to set forth the findings of fact and conclusions of law upon which it based its determination to assess points under risk factor 7 …

The court merely recited its conclusion, i.e., that “[d]efendant established a relationship with [the victim] for the purpose of victimization.” People v Johnson, 341, KA 12-00361, 4th Dept. 3-22-13

 

,

Allowing the Jury to Hear About Defendant’s Prior Crimes Was Error

Although finding it to be harmless error, the Fourth Department determined the jury should not have been allowed to hear portions of defendant’s grand jury testimony which included references to being on parole, being imprisoned and having sold drugs:

We agree with defendant that County Court erred in failing to consider the appropriate factors when it allowed the jury to hear portions of defendant’s grand jury testimony that included references to being on parole, serving five years for robbing banks, and having on occasion sold drugs. “Prejudicial material ‘not necessary to a full comprehension of the’ directly related evidence . . . is inadmissible, even though part of the same conversation . . . or, indeed, of the same sentence” … . That principle applies to the admission at trial of a defendant’s grand jury testimony just as it does to, e.g., audio recordings of telephone conversations … , statements made during the course of a crime to an undercover police officer …, and admissions made to police officers during custodial interrogation …. The court allowed the jury to hear such portions of defendant’s grand jury testimony after concluding only that the statements were voluntary.  In doing so, the court failed to consider whether such evidence was relevant and probative to any issue in this case … and then, if so, whether “its probative value exceed[ed] the potential for prejudice resulting to the defendant” … .  People v Woods, 322, KA 08-02465, 4th Dept. 3-22-13

 

 

Indictment Rendered Duplicitous by Trial Evidence Required Reversal

The Fourth Department reversed a conviction finding the indictment was rendered duplicitous by the trial evidence:

It is apparent from the record that the grand jury returned only a one-count indictment, having found the evidence of possession of the uncut cocaine insufficient to return a second count. The indictment was rendered duplicitous …because the People presented evidence at trial that defendant had constructive possession of both the uncut cocaine and the cocaine in the sandwich bag. Indeed, the prosecutor advanced that theory in her opening statement and on summation. “Under the circumstances, there can be no assurance that the jury ‘reached a unanimous verdict’ ” with respect to defendant’s constructive possession of the cocaine in the sandwich bag as opposed to the uncut cocaine … . People v Montgomery, 260, KA 09-00153, 4th Dept. 3-22-13

 

 

,

Notice of Intention to Offer Molineux Evidence During Jury Selection and Molineux Hearing Upon Completion of Jury Selection Are Timely

The Fourth Department determined that the People’s notice of intention to offer Molineux evidence, provided during jury selection, and the Court’s Molineux ruling, made upon the completion of jury selection, was timely:

According to defendant, the timing of the court’s Molineux ruling upon the completion of jury selection denied him the opportunity to explore the potential impact of that evidence on voir dire. It is well settled that “a defendant is not entitled as a matter of law to pretrial notice of the People’s intention to offer evidence pursuant to People v Molineux (168 NY 264 [1901]) or to a pretrial hearing on the admissibility of such evidence” … . People v Holmes, 258, KA 09-01281, 4th Dept. 3-22-13

 

 

,

Insufficient Evidence of Recklessness In Shooting Case

The Fourth Department reversed an Assault 2nd conviction and dismissed the indictment after a “weight of the evidence” review.  The prosecution’s theory was that the defendant acted recklessly by pointing a sawed-off shotgun at the victim, disregarding the risk that it would fire. But the proof at trial was that the shotgun discharged just as the defendant picked it up. The Fourth Department wrote:

The People … failed to present any evidence establishing that defendant brought the gun to the park; that the gun belonged to defendant; and that defendant had any knowledge that the gun was loaded with live ammunition or was aware of—and consciously disregarded—the risk that it might misfire (see generally Penal Law § 15.05 [3]).  People v Evans, 255, KA 10-01056, 4th Dept. 3-22-13

 

, ,

Defendants Accused of Crimes Not Listed in the Controlling Statutes Are Not Eligible for the Judicial Diversion Program—The Statutes Do Not Allow for Judicial Discretion

In a full-fledged opinion by Justice Centra, the Fourth Department determined a Monroe County Court Judge exceeded his authority by allowing defendants accused of crimes not listed in the relevant statute to participate in the judicial diversion program.  The Court wrote:

CPL 216.00 (1) provides as follows: “ ‘Eligible defendant’ means any person who stands charged in an indictment or a superior court information with a class B, C, D or E felony offense defined in article two hundred twenty or two hundred twenty-one of the penal law or any other specified offense as defined in subdivision four of section 410.91…’”

It is undisputed that respondent defendants were not charged with any offenses under Penal Law §§ 220 or 221, or any specified offense in CPL 410.91. In our opinion, that ends the inquiry, and respondent defendants are not eligible for judicial diversion. It is well settled that “ ‘[w]here the language of a statute is clear and unambiguous, courts must give effect to its plain meaning’ ” ….Likewise, “statutory interpretation always begins with the words of the statute” … .* * *

… [W]e agree with petitioner that she is also entitled to declaratory relief . “Although a declaratory judgment often revolves around a particular set of facts, [t]he remedy is available in cases where a constitutional question is involved or the legality or meaning of a statute is in question and no question of fact is involved” … . [T]he “criminal court’s ruling must have an obvious effect extending far beyond the matter pending before it so that it is likely that the issue will arise again with the same result in other cases” … .

[The opinion includes discussion of the nature and application of petitions for mandamus to compel and prohibition, and the County Court Judge’s argument that the use of judicial discretion re: the diversion program is allowed by statute.] Matter of Doorley v Hon John L. DeMarco, et al, 122, OP12-01563, 4th Dept. 3-22-13

 

,

“Alford” Plea in Related Criminal Proceeding Did Not Have Preclusive Effect

The Court of Appeals, in an opinion by Judge Pigott, held that an “Alford” plea entered in a criminal proceeding, in which there was no factual colloquy about the underlying offenses, should not be given a preclusive effect in a subsequent Worker’s Compensation proceeding related to the same facts.  The opinion includes a discussion of the criteria for and appropriate use of an “Alford” plea (in which guilt is not admitted).  In the Matter of Howard v Statute Electric, Inc., No. 29, CtApp 3-21-13

 

Re-Sentencing Under Drug Law Reform Act—Court Does Not Have Authority to Make Sentences Concurrent if Original Sentences Consecutive

The Court of Appeals ruled that when re-sentencing under the Drug Law Reform Act of 2009 (DLRA–Criminal Procedure Law 440.46), the sentencing court can not alter multiple drug felony convictions originally imposed consecutively so that they run concurrently.  When the court imposes a determinate sentence under the DLRA “[s]uch resentencing constitutes ‘alteration of the existing sentence as authorized by law’ …, rather than imposition of a new sentence or of an additional term of imprisonment” [see Criminal Procedure Law 70.25].  Therefore the re-sentencing court does not have the power to issue concurrent sentences when the original sentences were consecutive.  People v Norris, No. 39, CtApp 3-21-13

 

, ,

Corroborative Evidence for Confession—Strategy Behind Not Requesting Lesser Included Offenses and Severance

In an opinion by Judge Graffeo, in addressing the appellant’s claim of ineffective assistance of counsel, the strategic reasons for not requesting that the jury be charged with lesser included offenses and for not requesting a severance when culpability is arguably unequal were discussed.  In addition, the Court of Appeals addressed the level of corroborative evidence needed to allow into evidence an admission/confession made by the defendant (Criminal Procedure Law 60.50). The judgment of conviction was affirmed  People v McGee, No. 30, CtApp 3-21-13

 

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