The Third Department described the proper procedure for a petition for the modification of a SORA level pursuant to Correction Law section 168-o. Both an updated recommendation of the Board of Examiners and a hearing are required. People vs Hazen, 514028 Third Dept. 2-14-13
In a case based upon allegations the defendant assaulted his wife in a jealous rage, the trial judge allowed evidence of a prior crime to prove the “identity” of the perpetrator pursuant to the Molineux rule. The Second Department, in a prior decision, reversed the conviction finding that the perpetrator’s identity was not an issue in the case. After the initial reversal by the Second Department, the Court of Appeals, in turn, reversed the Second Department finding that the perpetrator’s identity had not been “conclusively established,” and sent the case back to determine if the identity exception was applicable to the facts. The Second Department stuck to its initial reasoning, finding that allowing the “prior crime” evidence on the issue of the perpetrator’s “identity” was an abuse of discretion because the prejudicial effect of the evidence outweighed its probative value. People vs Agina, 2005-11978, Ind. No. 1733/04 Second Dept. 2-13-13
Because the defendant resembled a “mug shot” of a wanted person, the police had the right to approach him to request information. Because the defendant was in an area the wanted person was known to frequent, the police had the common-law right to inquire. The defendant’s flight provided reasonable suspicion to pursue and stop him. The defendant’s discarding of a gun during the chase, therefore, was not the result of improper police action. People vs Barrow, 2011-030059, Ind. No. 1356/09 Second Dept. 2-13-13
DeBour, street stops
Proof was insufficient to demonstrate “drug or alcohol abuse” under the SORA guidelines. The SORA assessment was therefore improper. People vs. Palmer, People vs Long, Nos. 14 & 15, CtApp, 2-12-13
…[T]he consecutive nature of defendant’s sentence pursuant to Penal Law [section] 70.25 (2-a) is a collateral consequence of his conviction. …[T]he failure of the trial court to address the impact of Penal Law [section] 70.25 (2-a) during the plea colloquy does not require vacatur of the plea.” People vs Belliard, No. 5, CtApp 2-12-13
The Fourth Department reversed defendant’s conviction because his attorney had a conflict of interest. The attorney had represented someone who was heard on a recording talking to the defendant. The People sought to introduce the recording in evidence to prove defendant’s motive and intent for the charged burglary. The Fourth Department explained the procedure and criteria for determining whether such a conflict of interest requires reversal. One of the criteria is that the conflict affect the conduct of the defense, which the Fourth Department found to have occurred in this case. People vs McGillicuddy, 7 12-00530 Fourth Dept. 2-8-13
Although the victim was shot in the chest and arm, the Fourth Department determined there was insufficient evidence of serious physical injury and reduced the Assault 1st conviction to Attempted Assault 1st. The Court did not reach the issue whether the indictment was supported by legally sufficient evidence because the issue was not raised in the omnibus motion (suggesting that a conviction does not preclude raising insufficient-evidence-to-indict on appeal). People vs Madera, 6, KA 11-00450 Fourth Dept. 2-8-13
There is no right to counsel in a presentence interview with the probation department. People vs McNamara, 1472, KA 12-00204 Fourth Dept. 2-8-13
The Fourth Department dismissed one count of an indictment finding the indictment “multiplicitous” (charging a single offense in more than one count). The error was not preserved but the Court reviewed the issue “in the interest of justice.” People vs Quinn, 1131, KA 11-00278 Fourth Dept. 2-8-13
A valid waiver of the right to appeal did not preclude defendant from challenging the severity of his sentence where the sentencing court did not inform the defendant of the maximum term of incarceration and there was no specific sentence promise at the time of the waiver. People vs Scott, 107, KA 11-01655 Fourth Dept. 2-8-13
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