You are here: / Criminal Law
,

DEFENDANT’S POSITIVE PERFORMANCE IN THE PRISON SEX OFFENDER TREATMENT AND EDUCATIONAL PROGRAMS, GIVEN THE SERIOUSNESS OF HIS OFFENSES, DID NOT WARRANT A DOWNWARD DEPARTURE FROM LEVEL THREE TO LEVEL TWO; TWO-JUDGE DISSENT (CT APP).

The Court of Appeals, affirming the appellate division, over a two-justice dissent, determined defendant’s request for a downward departure in this SORA risk-level proceeding (level three to level two) was properly denied:

In 1988, defendant was convicted after trial of four counts of first-degree rape and four counts of first-degree sodomy, among other crimes, for raping or sexually assaulting five women in their homes at knifepoint during burglaries that occurred over the course of a year. In anticipation of defendant’s conditional release from imprisonment in 2020, the Board of Examiners of Sex Offenders assessed defendant 155 points on the risk assessment instrument (RAI), presumptively designating him a level three sexually violent offender for purposes of the Sex Offender Registration Act (SORA).

Defendant did not dispute the accuracy of the Board’s point assessment, but he requested that the court depart downward to risk level two. To that end, defendant argued that he did not present a high risk of sexual reoffense, as evidenced by his positive performance in sex offender treatment and educational programs while incarcerated (including obtaining his general equivalency diploma and college-level education credits), limited history of disciplinary infractions, age at time of release (51 years old), familial support, and his scores on two alternative risk assessment instruments. Defendant also asserted that he would be subject to supervision regardless of his risk designation as part of the terms of his conditional release, and that a level three designation would make it more difficult for him to locate housing. People v Anthony, 2023 NY Slip Op 03303, CtApp 6-15-23

Practice Point: Here defendant’s age (51) and positive performance in the prison sex offender treatment and educational programs, given the seriousness of his offenses, did not warrant a SORA risk-level downward departure from level three to level two. There was a strong two-judge dissent.

 

THE INCLUSORY CONCURRENT COUNTS MUST BE DISMISSED AND THE RELATED SENTENCES VACATED (THIRD DEPT).

The Third Department determined the inclusory concurrent counts must dismissed and the related sentences vacated:

Modification of the judgment is required due to defendant’s conviction of inclusory concurrent charges. ” ‘With respect to inclusory concurrent counts, a verdict of guilty upon the greatest count submitted is deemed a dismissal of every lesser count submitted’ ” (… CPL 300.40 [3] [b]). We agree with defendant, and the People correctly concede, that criminal sexual act in the first degree (two counts) must be reversed and dismissed as inclusory concurrent counts of predatory sexual assault against a child … . Defendant’s contention that incest in the third degree must be dismissed as an inclusory concurrent count of incest in the first degree is moot, as this Court has now dismissed the latter count. People v Sharlow, 2023 NY Slip Op 03260, Third Dept 6-15-23

Practice Point: Where a defendant is convicted of inclusory concurrent counts, those counts must be dismissed and the related sentences vacated.

 

,

ONCE THE APPELLATE DIVISION DETERMINED A SORA RISK FACTOR DID NOT APPLY, BRINGING DEFENDANT’S RISK ASSESSMENT FROM A LEVEL THREE TO A LEVEL TWO, THE APPELLATE COURT HAD THE AUTHORITY TO REMIT THE MATTER TO COUNTY COURT TO CONSIDER, FOR THE FIRST TIME, WHETHER AN UPWARD DEPARTURE WAS WARRANTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a dissenting opinion, determined that the appellate division appropriately remitted the matter to County Court after the appellate court reduced the risk assessment by 10 points because the People conceded the absence of forcible compulsion. Eliminating that 10 point assessment resulted in reducing defendant from a level three offender to a level two offender. The remittal was for the purpose of allowing County Court to consider an upward departure, which the court did not consider because defendant had been deemed a presumptive level three offender at the time of the SORA hearing:

Here, the People prevailed before the SORA court on their requested allocation of points under the RAI [risk assessment instrument] and risk level. When the Appellate Division reversed on the allocation of points and the risk level dropped accordingly, it remitted to allow the SORA court to consider a departure request for the first time. Defendant and our dissenting colleague object, contending that because this upward departure request was not made during the original SORA proceeding, the SORA court made no ruling “adverse” to the People, and the Appellate Division therefore could not “review” this “unpreserved” departure question and order remittal upon reversal. But this argument confuses the question of whether remittal was appropriate corrective action with a question of preservation … . This is not a case in which a party failed to present an issue to the SORA court and then asked the Appellate Division to nonetheless resolve that same question; the Appellate Division did not rule on the merits of the departure but remitted it for the SORA court to do so in the first instance … . * * *

Curbing the Appellate Division’s power to remit for consideration of departure requests when it disagrees with the hearing court’s point assessment and changes an offender’s presumptive risk level would undermine SORA’s objective and unduly constrain the Appellate Division’s authority to order appropriate remedial action.  People v Weber, 2023 NY Slip Op 03301, CtApp 6-15-23

Practice Point: Here in this SORA risk level proceeding, the appellate division appropriately remitted the matter to County Court to determine whether an upward departure was warranted. The appellate division had found a risk factor did not apply, reducing defendant’s risk level from three to two. County Court had not considered an upward departure in the original SORA proceeding because defendant’s presumptive risk level was already level three.

 

,

EVEN THOUGH THE SORA RISK LEVEL CAME OUT THE SAME (115 POINTS), THE JUDGE SHOULD NOT HAVE FIRST REMOVED 15 POINTS WHICH WERE BASED ON AN INAPPLICABLE RISK FACTOR AND THEN ADDED 15 POINTS BASED ON A RISK FACTOR NOT INCLUDED IN THE RISK ASSESSMENT; THAT CONSTITUTED AN UPWARD DEPARTURE WITHOUT NOTICE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, with a three-judge concurrence, reversing the appellate division, determined the judge in the SORA risk-level proceeding should not have departed from the presumptive risk level based on an issue of which the defendant was not given 10 days notice. The risk assessment included 15 points for refusing sex offender treatment but it was clear defendant did not refuse treatment. Rather, he was prohibited from receiving the treatment because of his prison disciplinary history. The judge agreed the 15 points for refusing treatment should be removed, but then added 15 points based on the defendant’s disciplinary record, a risk factor which was not included in the Board’s risk assessment:

Here, the proceeding failed to comport with due process because defendant was provided no notice or meaningful opportunity to be heard in response to the District Attorney’s request for an upward departure first interposed during the SORA hearing in response to the court’s invitation. The Board recommended the court classify defendant as a level three offender based on his risk factor score of 115 points and did not recommend an upward departure or that the court consider defendant’s disciplinary history for purposes aside from a factor 13 point allocation. Although the District Attorney agreed with the Board that defendant should be classified as a level three risk, the District Attorney reached that conclusion not on the total point assessment contained in the RAI but rather on an independent basis that defendant’s disciplinary history was sufficiently egregious to warrant an upward departure. Once the District Attorney announced its deviation from the reasons supporting the Board’s proposed risk level classification, defendant was entitled to a sufficient opportunity to consider and muster evidence in opposition to the request for an upward departure. The record shows that the court decided the issue without an adjournment, without allowing defendant to present rebuttal arguments or collect additional evidence, and without any input from defense counsel. The court erred by proceeding in this manner.  People v Worley, 2023 NY Slip Op 03300, CtApp 6-15-23

Practice Point: Even where the total number of SORA risk level points remains unchanged from that recommended by the Board, the judge cannot remove one inapplicable risk factor and then add a risk factor not recommended by the Board without affording defendant 10 days notice and an opportunity to be heard.

 

,

FAILURE TO INFORM THE DEFENDANT OF THE PERIOD OF POSTRELEASE SUPERVISION TO BE IMPOSED OR THE MAXIMUM POTENTIAL PERIOD OF POSTRELEASE SUPERVISION RENDERED THE GUILTY PLEA INVALID (SECOND DEPT). ​

The Second Department, vacating defendant’s guilty plea, determined the failure to inform defendant of the details of postrelease supervision rendered the plea invalid:

… [A]t the plea proceeding, the County Court mentioned that the sentence would include postrelease supervision, but did not specify the period of postrelease supervision to be imposed, nor did the court indicate the maximum potential duration of postrelease supervision that may be imposed. As the People concede, the court’s failure to so advise the defendant prevented his plea from being knowing, voluntary, and intelligent … . People v Pryor, 2023 NY Slip Op 03241, Second Dept 6-14-23

Practice Point: A guilty plea is not knowing, voluntary and intelligent unless the defendant is informed of the specific period of postrelease supervision and the maximum potential period of postrelease supervision. It is not enough simply to mention that postrelease supervision will be imposed.

 

, ,

DEFENDANT WAS WEARING A STUN BELT DURING THE TRIAL WITHOUT THE JUDGE’S OR PROSECUTOR’S KNOWLEDGE; THE MAJORITY HELD THIS WAS NOT A MODE OF PROCEEDINGS ERROR; A TWO-JUDGE DISSENT DISAGREED (CT APP).

The Court of Appeals, over a two-judge dissent, determined the fact that defendant was wearing a stun belt without the knowledge of the judge or the prosecutor was not a mode of proceedings error. However questions remain about whether defendant received effective assistance of counsel (failure to object) remain and a hearing on the motion to vacate the conviction on that ground is required. The dissent argued the stun-belt-error constituted a mode of proceedings error requiring reversal:

It is undisputed that sheriff officials required defendant to wear a stun belt at trial, that neither the People nor the trial court were aware of that fact, and that defendant failed to preserve any argument concerning the stun belt. Because the trial court did not articulate a particularized need for defendant to wear a stun belt, the use of that restraint was error … . The courts below thus did not abuse their discretion by summarily denying the portion of defendant’s CPL 440.10 motion based on his unpreserved assertion of a Buchanan [13 NY3d 1] error, which could have been raised before the trial court.

The courts below erred by summarily denying the portion of defendant’s motion concerning his ineffective assistance of counsel claim. Given the conceded Buchanan violation, factual issues exist concerning trial counsel’s effectiveness. For instance, County Court should determine if counsel had a legitimate explanation for declining to object. There has been no hearing concerning whether defendant voiced his concerns about wearing the stun belt to his trial attorney as he contends … . Further, defendant submitted evidence in support of his motion which raises factual questions as to whether he consented to wearing the stun belt at trial … . Defendant’s ineffective assistance claim should be decided under the applicable standard … on a full record following a hearing … . People v Bradford, 2023 NY Slip Op 03187, CtApp 6-13-23

Practice Point: Before a defendant is required to wear a stun belt during trial, the judge must explain the reasons on the record. Here neither the judge nor the prosecutor was aware defendant was wearing a stun belt. The majority determined the belt did not constitute a mode of proceedings error. The two-judge dissent disagreed.

 

, ,

THE JUDGE DID NOT CONDUCT THE REQUIRED “SEARCHING INQUIRY” BEFORE ALLOWING DEFENDANT TO PROCEED PRO SE; NEW TRIAL ORDERED (CT APP).

The Court of Appeals, reversing defendant’s conviction, in a memorandum decision which did not describe the facts, determined the judge did not conduct a “searching inquiry” before allowing defendant to proceed pro se:

The order of the Appellate Division should be reversed, and a new trial ordered. In contrast to People v Duarte (37 NY3d 1218 [2022]), the trial court here recognized defendant as having unequivocally requested to proceed pro se. However, the court failed to conduct the required “‘searching inquiry’ to ensure that the defendant’s waiver [of the right to counsel] is knowing, intelligent, and voluntary” (People v Silburn, 31 NY3d 144, 150 [2018] … ). People v Holmes, 2023 NY Slip Op 03186, CtApp 6-13-23

Practice Point: When a defendant requests to go ahead with a trial without an attorney, the judge must conduct a “searching inquiry” to determine if the waiver of the right to counsel is knowing, intelligent and voluntary. The failure to do so requires and new trial.

 

,

THE PROOF THAT THE SUBWAY TRACKS WERE USED AS A DANGEROUS INSTRUMENT WAS LEGALLY INSUFFICIENT; DEFENDANT’S ASSAULT SECOND CONVICTION VACATED (FIRST DEPT).

The First Department, vacating the assault second as a hate crime conviction, determined the proof did not support the theory that the subway tracks were used as a dangerous instrument:

The theory supporting this count was not that defendant intended to use the electrified third rail or a moving train as a dangerous instrument, or acted recklessly, but instead that defendant intended that the victim be injured by striking the tracks, alleged to be a “hard object.” The evidence failed to establish defendant’s intent to use the tracks in that manner. The People’s evidence, including the victim’s testimony and a blurry video, was consistent with the victim merely tripping and falling onto the tracks during an altercation with defendant … . Moreover, even if defendant merely caused the victim to fall on the tracks, that would not establish the specific intent required for this conviction. For similar reasons, we find that the verdict on this count was against the weight of the evidence. People v Ames, 2023 NY Slip Op 03205, First Dept 6-13-23

Practice Point: The proof that the victim tripped and fell onto subway tracks during an altercation did not demonstrate defendant’s intent to use the subway tracks as a dangerous instrument. The assault second conviction was vacated.

 

, ,

THE WAIVER OF APPEAL WAS INVALID BECAUSE THE JUDGE STATED THE WAIVER WAS AN ABSOLUTE BAR TO AN APPEAL (FOURTH DEPT).

The Fourth Department determined defendant’s waiver of appeal was invalid:

… [D]efendant’s waiver of the right to appeal is invalid because County Court’s oral colloquy mischaracterized it as an “absolute bar” to the taking of an appeal … . …

Furthermore, the written waiver executed by defendant did not contain any clarifying language to correct deficiencies in the oral colloquy. Rather, it perpetuated the oral colloquy’s mischaracterization of the waiver of the right to appeal as an absolute bar to the taking of a first-tier direct appeal and even stated that the rights defendant was waiving included the “right to have an attorney appointed” if she could not afford one and the “right to submit a brief and argue before an appellate court issues relating to [her] sentence and conviction” … . People v Shea’Honnie D., 2023 NY Slip Op 03137, Fourth Dept 6-9-23

Practice Point: A waiver of appeal is not absolute and the judge’s characterizing a waiver as absolute invalidates it.

 

, , ,

IN THIS MURDER TRIAL, THE PROSECUTOR REPEATEDLY BROUGHT UP UNCHARGED CRIMES WHICH WERE NOT MENTIONED IN THE PRETRIAL SANDOVAL PROCEEDINGS; THE JUDGE DID NOT INTERVENE; THE DEFENSE DID NOT OBJECT; CONVICTIONS REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s murder and weapons convictions, determined prosecutorial misconduct and the judge’s failure to intervene (there were no defense objections) required a new trial. The prosecutor repeatedly mentioned uncharged crimes which were not brought up in the Sandoval proceedings:

During their direct case, however, the People elicited testimony from three different witnesses about a prior bad act that had not been included in their Sandoval/Molineux proffer.  * * *

The prosecutor asked defendant whether the incident, which had occurred approximately a decade earlier, involved him shooting a rifle toward another person. Defendant denied this, and he was then questioned as to whether he tried to reload the rifle but was stopped by bystanders, which he also denied. The prosecutor then asked, “is that how you handle your confrontations, you grab a gun and just fire away?” The prosecutor continued the questioning in this vein by asking defendant whether it was “[k]ind of like . . . … [when] you just fired a warning shot out the window, correct?” The prosecutor subsequently cross-examined defendant relative to the incident involving him shooting someone off a motorcycle — which … was not included in the People’s Sandoval/Molineux motion. … [T]he prosecutor inquired as to whether defendant had stated in a recorded jail call that another inmate had urinated in his bed and that, if he caught who did it, he would stab that person in the neck with a pencil. * * *

… [T]he magnitude of the prosecutor’s misconduct was the fact that County Court made no effort to intervene or otherwise attempt to minimize or alleviate the prejudice being caused to defendant…. . People v Nellis, 2023 NY Slip Op 03046, Third Dept 5-8-23

Practice Point: Although the convictions were not against the weight of the evidence, prosecutorial misconduct and the judge’s failure to intervene warranted a new trial. The prosecutor repeatedly brought up uncharged crimes which were not ruled upon in the Sandoval proceedings.

 

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