Criminal Law Update April May June 2023
(Nontransitional) Prerecorded Audio (On Demand/Recorded-Audio)
Appropriate for Experienced Attorneys
Areas of Professional Practice: 1.5 CLE Credit Hours
Note: Before Relying On Any Decision Summarized on this Site, Including the Summaries in the CLE Written Materials, Make Sure It Remains Good Law Using the Method You Trust for that Purpose. See the Discussion Under “Shepardize” in the “How to Use the New York Appellate Digest” Section on the Home Page.
This course organizes summaries of decisions by the New York State appellate courts (Appellate Division and Court of Appeals) released April, May and June, 2023 which address issues in “Criminal Law.”
The “Civil Procedure” decision-summaries posted weekly on the New York Appellate Digest website are organized in monthly pamphlets which are accessed in the “Update Service.” The monthly pamphlets comprise the written materials for these CLE update courses. The links to the written materials for this course (“Criminal Law Reversal Report April 2023,” “Criminal Law Reversal Report May 2023” and “Criminal Law Reversal Report June 2023”) are provided below.
As you listen to the course, you will hear a verification code. After finishing the course, print and fill out the attached “Attorney Affirmation,” including the verification code, your name, your signature, and the date you completed the course. Please also fill out the attached “Evaluation Survey” (the CLE Board requires that I collect and preserve the Evaluation Surveys). Scan the “Attorney Affirmation” and the “Evaluation Survey” and email them as attachments to me, Bruce Freeman, at NewYorkAppellateDigest@gmail.com. I will email to you the completed “New York CLE Certificate of Attendance,” as an attachment, awarding you credit for the 1 credit-hour course. Or, if you wish to send and receive hard copies by regular mail, send the “Attorney Affirmation” and “Evaluation Survey” to New York Appellate Digest, LLC, 126 Colonial Village Road, Rochester, New York 14625 and make sure to include your return address.
Click on the links below for the written materials (“Criminal Law Reversal Report April 2023.” “Criminal Law Reversal Report May 2023” and “Criminal Law Reversal Report June 2023”), the “Attorney Affirmation” (the “verification code” form) and the “Evaluation Survey.”
The media player for this course is at the bottom of the page.
Criminal Law Reversal Report April 2023
Criminal Law Reversal Report May 2023
Criminal Law Reversal Report June 2023
Attorney Affirmation Criminal Law Update April May June 2023
Evaluation Survey Criminal Law Update April May June 2023
Topics Covered in the “Criminal Law Update April May June 2023” Course Are Described Below (the podcast may not address every case in the written materials); Page Numbers Refer to the Written Materials, i.e., the Pages in the “Criminal Law Reversal Report April 2023,” “Criminal Law Reversal Report May 2023” and “Criminal Law Reversal Report June 2023”
APRIL 2023 CRIMINAL LAW REVERSAL REPORT
APPEALS, SENTENCING, POST RELEASE SUPERVISION, CONSTITUTIONAL LAW, PERSISTENT FELONY OFFENDER DESIGNATION. 3
WHEN DEFENDANT PLED GUILTY IN 2002 HE WAS NOT INFORMED OF THE PERIOD OF POST RELEASE SUPERVISION (PRS) AND HE DID NOT MOVE TO WITHDRAW THE PLEA IIN 2010 WHEN PRS WAS ADDED TO HIS SENTENCE; DEFENDANT DID NOT WAIVE HIS RIGHT TO CONTEST THE CONSTITUTIONALITY OF THE 2002 CONVICTION RE: A PERSISTENT FELONY OFFENDER DESIGNATION (FIRST DEPT). 3
APPEALS, WEIGHT OF THE EVIDENCE. 4
DEFENDANT’S BURGLARY CONVICTION WAS BASED SOLELY ON A SODA CAN WITH HIS DNA ON IT; THE CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT). 4
ASSAULT, DANGEROUS INSTRUMENT. 4
THE ASSAULT SECOND CONVICTION WAS REVERSED BECAUSE PROOF A BAMBOO STICK WAS A “DANGEROUS INSTRUMENT” WAS LEGALLY INSUFFICIENT; ASSAULT THIRD CONVICTION VACATED AS AN INCLUSORY CONCURRENT COUNT OF ASSAULT SECOND (SECOND DEPT). 4
FAMILY COURT, JUVENILES. 5
WHEN A JUVENILE PLEADS GUILTY TO AN OFFENSE FOR WHICH HE CANNOT BE HELD CRIMINALLY RESPONSIBLE, THE CONVICTION MUST BE VACATED AND DISMISSED (FIRST DEPT). 5
FAMILY OFFENSES, JUDGES. 7
THIS FAMILY OFFENSE PROCEEDING WAS REMITTED TO FAMILY COURT; APPELLATE REVIEW WAS NOT POSSIBLE IN THE ABSENCE OF FINDINGS OF FACT ADDRESSING CONFLICTING EVIDENCE AND THE CREDIBILITY OF WITNESSES (SECOND DEPT). 7
FAMILY OFFENSES. 8
THE EVIDENCE SUPPORTED HARASSMENT AS A FAMILY OFFENSE BUT DID NOT SUPPORT AGGRAVATED HARASSMENT OR DISORDERLY CONDUCT (FOURTH DEPT). 8
INCLUSORY CONCURRENT COUNTS. 9
THE MURDER SECOND DEGREE COUNTS MUST BE DISMISSED AS INCLUSORY CONCURRENT COUNTS OF MURDER FIRST DEGREE (THIRD DEPT). 9
JURORS, JUDGES. 9
THE JUDGE IMPROPERLY DISMISSED A JUROR WHEN SHE DIDN’T APPEAR WITHOUT MAKING AN INQUIRY; NEW TRIAL ORDERED (THIRD DEPT). 9
SENTENCING, JUDGES, CIVIL PROCEDURE, CONTRACT LAW. 10
THE BRAKES FAILED ON A LIMOUSINE OWNED BY PETITIONER AND 20 PEOPLE DIED; PETITIONER PLED TO 20 COUNTS OF CRIMINALLY NEGLIGENT HOMICIDE AND, PURSUANT TO A PLEA AGREEMENT, WAS SENTENCED TO PROBATION AND COMMUNITY SERVICE; BECAUSE OF A TECHNICAL DEFECT IN THE SENTENCE, PETITIONER APPEARED FOR RESENTENCING BEFORE A DIFFERENT JUDGE WHO DECIDED TO IMPOSE PRISON TIME; PETITIONER WITHDREW HIS PLEA, THE MATTER WAS SET FOR TRIAL AND PETITIONER BROUGHT THIS ARTICLE 78 PROCEEDING TO REINSTATE THE ORIGINAL SENTENCE; THE PETITION WAS DENIED OVER A DISSENT (THIRD DEPT). 10
SENTENCING. 11
CONSECUTIVE SENTENCES SHOULD NOT HAVE BEEN IMPOSED RE: CERTAIN WEAPONS-POSSESSION COUNTS (THIRD DEPT). 11
SEX OFFENDER REGISTRATION ACT (SORA), APPEALS. 12
BURGLARY AS A SEXUALLY MOTIVATED FELONY IS NOT AN ENUMERATED OFFENSE UNDER SORA, THEREFORE DEFENDANT WAS NOT REQUIRED TO REGISTER AS A SEX OFFENDER; THE WAIVER OF APPEAL WAS INVALID (THIRD DEPT). 12
SEX OFFENDER REGISTRATION ACT (SORA), APPEALS. 13
DEFENDANT’S “PROMOTING A SEXUAL PERFORMANCE BY A CHILD” CONVICTION WAS REVERSED ON THE LAW; THE DEFENDANT CANNOT BE CLASSIFIED AS A “SEX OFFENDER” (FOURTH DEPT). 13
SEX OFFENDER REGISTRATION ACT (SORA), ATTORNEYS. 14
DEFENDANT’S ATTORNEY ESSENTIALLY FAILED TO TAKE ANY POSITION ON THE SORA RISK ASSESSMENT; NEW HEARING ORDERED (SECOND DEPT). 14
SEX OFFENDER REGISTRATION ACT (SORA), MENTAL HYGIENE LAW, CONSTITUTIONAL LAW. 15
THE PROVISION OF MENTAL HYGIENE LAW SECTION 10 THAT ALLOWS A COURT TO DETERMINE WHETHER THERE IS PROBABLE CAUSE TO BELIEVE PETITIONER, WHO HAD BEEN RELEASED TO A STRICT AND INTENSIVE SUPERVISION AND TREATEMENT (SIST) REGIMEN, IS A DANGEROUS SEX OFFENDER REQUIRING CONFINEMENT IS NOT UNCONSTITUTIONAL (SECOND DEPT). 15
SEX OFFENDER REGISTRATION ACT (SORA). 16
A SEX OFFENDER MAY PETITION ANNUALLY FOR A MODIFICATION OF THE RISK LEVEL CLASSIFICATION; SUCH A PETITION IS NOT PRECLUDED BY PRIOR PETITIONS WITHIN A YEAR SEEKING OTHER RELIEF UNDER THE CORRECTION LAW (SECOND DEPT), 16
SEX OFFENDER REGISTRATION ACT (SORA). 17
BURGLARY AS A SEXUALLY MOTIVATED FELONY IS NOT A REGISTRABLE OFFENSE UNDER SORA; THE JUDGMENT REQUIRING DEFENDANT TO REGISTER AS A SEX OFFENDER VACATED (THIRD DEPT). 17
SUPERIOR COURT INFORMATION, EXCEPTIONS. 18
THE SUPERIOR COURT INFORMATION (SCI) DID NOT AFFIRMATIVELY PLEAD THE EXCEPTION IN THE CRIMINAL MISCHIEF STATUTE; THEREFORE THE CRIMINAL MISCHIEF COUNT WAS JURISDICTIONALLY DEFECTIVE (THIRD DEPT). 18
SUPERIOR COURT INFORMATION. 19
A SUPERIOR COURT INFORMATION (SCI) FILED AFTER INDICTMENT IS A NULLITY (CT APP). 19
VACATE CONVICTION, NEWLY DISCOVERED EVIDENCE. 19
TEXT EXCHANGES WITH AND PHOTOGRAPHS OF THE RAPE AND SEXUAL-ABUSE VICTIM DELETED BY DEFENDANT
FROM HIS CELL PHONE AND SUBSEQUENTLY RECOVERED DO NOT CONSTITUTE “NEWLY DISCOVERED” EVIDENCE WHICH WILL SUPPORT A MOTION TO VACATE THE CONVICTION (CT APP). 19
WAIVER OF INDICTMENT. 20
THE RECORD DID NOT DEMONSTRATE THE WAIVER OF INDICTMENT WAS SIGNED IN OPEN COURT, A JURISDICTIONAL DEFECT (THIRD DEPT). 20
MAY 2023 CRIMINAL LAW REVERSAL REPORT
ASSAULT, EVIDENCE. 4
THE EVIDENCE OF PHYSICAL INJURY WAS SUFFICIENT TO SUPPORT THE ASSAULT SECOND CONVICTION (CT APP). 4
BRADY MATERIAL. 5
THE FACT THAT THE PEOPLE WERE HELPING THE COMPLAINANT PROCURE A U VISA WHICH WOULD ALLOW THE COMPLAINANT TO STAY IN THE US AND APPLY FOR PERMANENT RESIDENCE WAS BRADY MATERIAL WHICH SHOULD HAVE BEEN PROVIDED TO THE DEFENSE; U VISAS ARE AVAILABLE TO ALIENS WHO SUFFER ABUSE FROM CRIMINAL ACTIVITY; CONVICTIONS REVERSED AND INDICTMENTS DISMISSED (FIRST DEPT). 5
BURGLARY, EVIDENCE. 6
THE STORE MANAGER TOOK THE TWO CANS OF RED BULL DEFENDANT WAS CARRYING FROM HIM AND TOLD HIM TO LEAVE THE STORE; THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE BURGLARY CONVICTION; AN EXTENSIVE TWO-JUSTICE DISSENT ARGUED OTHERWISE (FIRST DEPT). 6
CIRCUMSTANTIAL EVIDENCE. 7
THE DEFENSE REQUEST FOR THE CIRCUMSTANTIAL-EVIDENCE JURY INSTRUCTION SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (FIRST DEPT). 7
DEPRAVED INDIFFERENCE. 8
THE DEPRAVED INDIFFERENCE MURDER JURY INSTRUCTION DID NOT PROPERLY EXPLAIN THAT DEPRAVED INDIFFERENCE IS THE DEFENDANT’S MENTAL STATE AT THE TIME OF THE CRIME, NOT THE OBJECTIVE CIRCUMSTANCES UNDER WHICH THE HOMICIDE OCCURRED; APPELLATE COUNSEL WAS INEFFECTIVE FOR FAILING TO RAISE THE ISSUE; WRIT OF CORAM NOBIS GRANTED AND NEW TRIAL ORDERED (THIRD DEPT). 8
FAMILY OFFENSES. 9
THE INDICTMENT COUNT CHARGING AGGRAVATED FAMILY OFFENSE DID NOT SPECIFY WHICH OF THE LISTED OFFENSES WAS THE BASIS OF THE CHARGE, RENDERING THE COUNT JURISDICTIONALLY DEFECTIVE (CT APP). 9
GRAND JURY, JUROR HAD FELONY CONVICTION. 10
ONE OF THE GRAND JURORS HAD A FELONY CONVICTION RENDERING THE GRAND JURY ILLEGALLY CONSTITUTED; THE INDICTMENT SHOULD HAVE BEEN DISMISSED; WHETHER THE DEFENDANT WAS PREJUDICED WAS IRRELEVANT (FOURTH DEPT). 10
IMPEACHMENT. 12
THE WITNESS’S TRIAL TESTIMONY THAT HE DID NOT SEE THE PERPETRATOR’S FACE AND DID NOT SEE THE DEFENDANT FIRE A GUN MERELY FAILED TO CORROBORATE OR BOLSTER THE PEOPLE’S CASE, IT DID NOT CONTRADICT OR DISPROVE ANY EVIDENCE; THEREFORE THE PROSECUTOR SHOULD NOT HAVE BEEN ALLOWED TO IMPEACH THE WITNESS (SECOND DEPT). 12
INDICTMENTS. 12
THE INDICTMENT DID NOT GIVE ADEQUATE NOTICE OF THE PARTICULAR CRIME WITH WHICH DEFENDANT WAS CHARGED (FIRST DEPT). 12
JURY NOTES. 13
WHERE A JURY NOTE DOES NOT UNAMBIGUOUSLY DESCRIBE A REQUESTED EXHIBIT, THE NOTE MUST BE READ OR SHOWN TO THE PARTIES AND THE PARTIES MUST BE ALLOWED INPUT RE: THE PROPER RESPONSE; HERE THE JUDGE DID NOT FOLLOW THAT PROCEDURE AND THE CONVICTIONS WERE REVERSED (FIRST DEPT). 13
JURY NOTES. 14
WHERE A JURY NOTE DOES NOT UNAMBIGUOUSLY DESCRIBE A REQUESTED EXHIBIT, THE NOTE MUST BE READ OR SHOWN TO THE PARTIES AND THE PARTIES MUST BE ALLOWED INPUT RE: THE PROPER RESPONSE; HERE THE JUDGE DID NOT FOLLOW THAT PROCEDURE AND THE CONVICTIONS WERE REVERSED (FIRST DEPT). 14
JUSTIFICATION DEFENSE. 15
THE DEFENDANT TESTIFED THE VICTIM WAS ON TOP OF HIM REPEATEDLY STRIKING HIM IN THE HEAD WHEN HE PULLED OUT HIS FIREARM AND SHOT THE VICTIM; EVEN IF DEFENDANT’S VERSION WAS DEEMED UNLIKELY, THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE; NEW TRIAL ORDERED (FOURTH DEPT). 15
JUSTIFICATION DEFENSE. 16
THE PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE; THE FACT THAT THE VICTIM WAS SHOT IN THE BACK DURING A SHOOTOUT WAS NOT ENOUGH (FIRST DEPT). 16
PAROLEES, SEARCHES. 17
PAROLEES DO NOT SURRENDER THEIR CONSTITUTIONAL RIGHTS AGAINST UNREASONABLE SEARCHES AND SEIZURES; HERE THE SEARCH BY PAROLE OFFICERS WAS BASED UPON A TIP FROM DEFENDANT’S MOTHER; THE SEARCH WAS DEEMED SUBSTANTIALLY RELATED TO THE PAROLE OFFICERS’ DUTIES; THERE WAS A DISSENT (THIRD DEPT). 17
POSSESSION OF A WEAPON, CONSTITUTIONAL LAW. 18
THE DEFENDANT ARGUED A 2022 US SUPREME COURT RULING FINDING NEW YORK’S FIREARM LICENSING REQUIREMENT UNCONSITUTIONAL RENDERED THE POSSESSION-OF-A-WEAPON STATUTE TO WHICH HE PLED GUILTY IN 2016 UNCONSTITUTIONAL; THE ISSUE WAS NOT PRESERVED BECAUSE IT WAS NOT RAISED IN THE TRIAL COURT IN 2016 (FIRST DEPT). 18
PUBLIC TRIAL. 20
THE JUDGE CLOSED THIS MURDER TRIAL TO THE PUBLIC CITING “INTIMIDATION” BY SPECTATORS AND THE POSTING OF A PHOTO OF THE TRIAL ON INSTAGRAM; THE SPARSE RECORD DID NOT SUPPORT CLOSING THE COURTROOM, NEW TRIAL ORDERED (CT APP). 20
PUBLIC TRIAL. 21
THE JUDGE’S POLICY OF NOT LETTING MEMBERS OF THE PUBLIC INTO THE COURTROOM DURING TESTIMONY HAD THE UNINTENDED EFFECT OF EXCLUDING MEMBERS OF THE PUBLIC FROM PORTIONS OF THE TRIAL; NEW TRIAL ORDERED (CT APP) 21
SENTENCING, VIRTUAL. 22
DEFENDANT WAS SENTENCED VIRTUALLY AND DID NOT WAIVE HIS RIGHT TO BE PRESENT; RESENTENCING ORDERED (FIRST DEPT). 22
SENTENCING. 22
A SENTENCE CANNOT BE ALTERED AFTER THE DEFENDANT HAS BEGUN SERVING IT; HERE THE AMENDED UNIFORM SENTENCE AND COMMITMENT FORM DID NOT MERELY CORRECT AN INADVERTENT MISTAKE, IT ALTERED THE SENTENCE AND WAS THEREFORE INVALID (SECOND DEPT). 22
SENTENCING. 23
DEFENDANT IN THIS MANSLAUGHTER CASE WAS THE VICTIM OF DOMESTIC VIOLENCE AND SHOULD HAVE BEEN SENTENCED UNDER THE ALTERNATIVE SENTENCING SCHEME IN THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (FOURTH DEPT). 23
SENTENCING. 24
THE CONVICTION UPON WHICH DEFENDANT’S SECOND-FELONY-OFFENDER STATUS WAS BASED WAS MORE THAN 10 YEARS BEFORE THE CURRENT OFFENSE AND THE PEOPLE DID NOT DEMONSTRATE THAT ANY PORTION OF THE 10-YEAR PERIOD WAS TOLLED BY INCARCERATION; SENTENCE VACATED AND MATTER REMITTED FOR A HEARING AND RESENTENCING (THIRD DEPT). 24
SEX OFFENDER REGISTRATION ACT (SORA). 25
DEFENDANT WAS ENTITLED TO A DOWNWARD DEPARTURE TO A LEVEL ONE BECAUSE HE HAD BEEN AT LIBERTY FOR 17 YEARS WITHOUT REOFFENDING (SECOND DEPT). 25
SEX OFFENDER REGISTRATION ACT (SORA). 26
EVEN THOUGH THE NUMBER OF POINTS WAS REDUCED BY THE CHANGE IN THE FACTUAL BASIS FOR THE RISK ASSESSMENT FROM “ARMED WITH A DANGEROUS INSTRUMENT” (RECOMMENDED BY THE BOARD) TO “INFLICTED PERSONAL INJURY,” DEFENDANT WAS ENTITLED TO 10 DAYS NOTICE OF THE CHANGE (SECOND DEPT). 26
SEX OFFENDER REGISTRATION ACT (SORA). 27
EVEN THOUGH THE NUMBER OF POINTS WAS REDUCED BY THE CHANGE IN THE FACTUAL BASIS FOR THE RISK ASSESSMENT FROM “ARMED WITH A DANGEROUS INSTRUMENT” (RECOMMENDED BY THE BOARD) TO “INFLICTED PERSONAL INJURY,” DEFENDANT WAS ENTITLED TO 10 DAYS NOTICE OF THE CHANGE (SECOND DEPT). 27
SIROIS HEARING. 28
THE DEFENDANT WAS ENTITLED TO A SIROIS HEARING ON WHETHER HE PROCURED THE VICTIM’S REFUSAL TO TESTIFY; CONVICTION REVERSED (THIRD DEPT). 28
SPEEDY TRIAL, COVID TOLLS. 29
THE EXECUTIVE-ORDER COVID TOLLS APPLY TO THE SPEEDY TRIAL STATUTE, RENDERING THE INDICTMENT OF THE DEFENDANT TIMELY (SECOND DEPT). 29
SPEEDY TRIAL, COVID. 30
THE ORDER SUSPENDING THE SPEEDY TRIAL STATUTE DURING COVID APPLIED HERE; DEFENDANT’S SPEEDY-TRIAL MOTION TO DISMISS THE INDICTMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). 30
SPEEDY TRIAL. 31
HERE THE NEW STATUTE REQUIRING THE PEOPLE TO FILE AND SERVE A CERTIFICATE OF COMPLIANCE WITH DISCOVERY OBLIGATIONS WENT INTO EFFECT AFTER THE PEOPLE HAD ANNOUNCED READINESS FOR TRIAL; THE STATUTE RETURNED THE PEOPLE TO A STATE OF UNREADINESS; DEFENDANT’S MOTION TO DISMISS ON SPEEDY-TRIAL GROUNDS SHOULD HAVE BEEN GRANTED (FOURTH DEPT). 31
STREET STOPS. 32
THE DEFENDANT’S ACTIONS OBSERVED BY THE POLICE OFFICERS IN THIS STREET STOP DID NOT MEET THE “REASONABLE SUSPICION DEFENDANT HAD COMMITTED A CRIME OR WAS IN POSSESSION OF A WEAPON” STANDARD; THE FRISK WAS THEREFORE ILLEGAL AND THE SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED (CT APP). 32
TRAFFIC STOPS, SEARCHES AND SEIZURES. 33
THE TRAFFIC STOP WAS VALID, BUT THE POLICE OFFICERS SAW NOTHING TO INDICATE A WEAPON WAS IN THE CAR; THE SEARCH OF THE CAR AND SEIZURE OF A WEAPON FROM AN OPEN PURSE IN THE BACK SEAT WAS ILLEGAL (FIRST DEPT). 33
JUNE 2023 CRIMINAL LAW REVERSAL REPORT
APPEALS, INVALID WAIVER. 4
THE WAIVER OF APPEAL WAS INVALID BECAUSE THE JUDGE STATED THE WAIVER WAS AN ABSOLUTE BAR TO AN APPEAL (FOURTH DEPT). 4
ASSAULT, SUBWAY TRACKS AS DANGEROUS INSTRUMENT. 4
THE PROOF THAT THE SUBWAY TRACKS WERE USED AS A DANGEROUS INSTRUMENT WAS LEGALLY INSUFFICIENT; DEFENDANT’S ASSAULT SECOND CONVICTION VACATED (FIRST DEPT). 4
ATTORNEYS, DEFENDANT CLAIMED ASSIGNED COUNSEL WAS PAID BY FAMILY. 5
THE JUDGE SHOULD HAVE INQUIRED INTO DEFENDANT’S ALLEGATION HIS ASSIGNED COUNSEL WAS BEING PAID BY HIS FAMILY; NEW TRIAL ORDERED (FOURTH DEPT). 5
GUILTY PLEA INVALID. 6
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). 6
INCLUSORY CONCURRENT COUNTS. 7
THE INCLUSORY CONCURRENT COUNTS MUST BE DISMISSED AND THE RELATED SENTENCES VACATED (THIRD DEPT). 7
JUDGES, APPEARANCE OF AN ADVOCATE. 7
THE TRIAL JUDGE TOOK ON THE APPEARANCE OF AN ADVOCATE FOR THE PROSECUTION IN QUESTIONING WITNESSES; ROBBERY CONVICTION REVERSED (SECOND DEPT). 7
JURORS, FOR CAUSE CHALLENGES. 8
THE FOR CAUSE CHALLENGES TO TWO JURORS WHO SAID THEY WOULD TEND TO BELIEVE THE TESTIMONY OF POLICE OFFICERS SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (FOURTH DEPT). 8
JUSTIFICATION DEFENSE. 9
THE PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE; THE FACT THAT THE VICTIM WAS SHOT IN THE BACK DURING A SHOOTOUT WAS NOT ENOUGH (FIRST DEPT). 9
JUSTIFICATION DEFENSE. 10
THE PEOPLE DID NOT DISPROVE THE JUSTIFICATION DEFENSE; THE FACT THAT THE VICTIM WAS SHOT IN THE BACK DURING A SHOOTOUT WAS NOT ENOUGH (FIRST DEPT). 10
JUVENILE DELINQUENCY, PARKER WARNINGS. 11
RESPONDENT JUVENILE WAS NOT INFORMED THE FACT FINDING HEARING IN THIS JUVENILE DELINQUENCY PROCEEDING WOULD GO FORWARD IN HIS ABSENCE (THE PARKER WARNING); THEREFORE RESPONDENT DID NOT WAIVE THE RIGHT TO BE PRESENT AND THE ADJUDICATION WAS REVERSED BECAUSE OF HIS ABSENCE (FOURTH DEPT). 11
PAROLE WARRANT CHALLENGED. 12
DEFENDANT CHALLENGED THE VALIDITY OF THE PAROLE WARRANT WHICH WAS THE BASIS OF THE ENTRY INTO HIS HOME (THE PAYTON ISSUE); THE JUDGE SHOULD HAVE HELD A HEARING TO DETERMINE THE VALIDITY OF THE PAROLE WARRANT (FOURTH DEPT). 12
PRO SE INQUIRY INADEQUATE. 14
THE JUDGE DID NOT CONDUCT THE REQUIRED “SEARCHING INQUIRY” BEFORE ALLOWING DEFENDANT TO PROCEED PRO SE; NEW TRIAL ORDERED (CT APP). 14
PROSECUTORIAL MISCONDUCT. 14
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). 14
SANDOVAL. 16
PRECEDENT DID NOT REQUIRE THE TRIAL JUDGE TO ADMIT, UNDER SANDOVAL, EVIDENCE OF A PRIOR CONVICTION SIMILAR TO THE OFFENSE ON TRIAL; RATHER THAT PRECEDENT ONLY HELD EVIDENCE OF A PRIOR CONVICTION SHOULD NOT BE EXCLUDED SOLELY BASED ON SIMILARITY; THE PREJUDICE VERSUS PROBATIVE-VALUE ANALYSIS SHOULD STILL BE APPLIED (FOURTH DEPT). 16
SECOND FELONY ADJUDICATION, FOREIGN CONVICTION. 17
THE WASHINGTON DC ATTEMPT TO COMMIT ROBBERY CONVICTION COULD NOT BE THE BASIS OF A SECOND FELONY OFFENDER ADJUDICATION IN NEW YORK (SECOND DEPT). 17
SEX OFFENDER REGISTRATION ACT (SORA), CONSTITUTIONAL LAW. 18
THE STATUTE PROHIBITING SEX OFFENDERS FROM BEING WITHIN 1000 FEET OF SCHOOL GROUNDS AS APPLIED TO SEX OFFENDERS CONVICTED BEFORE THE STATUTE WENT INTO EFFECT DOES NOT VIOLATE THE EX POST FACTO CLAUSE; HERE PETITIONER WAS INCARCERATED PAST HIS PAROLE DATE BECAUSE HOUSING WHICH COMPLIED WITH THE SCHOOL GROUNDS LAW COULD NOT BE FOUND (CT APP). 18
SEX OFFENDER REGISTRATION ACT (SORA). 19
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). 19
SEX OFFENDER REGISTRATION ACT (SORA). 20
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). 20
SEX OFFENDER REGISTRATION ACT (SORA). 21
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). 21
SEX OFFENDER REGISTRATION ACT (SORA). 22
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). 22
SEX OFFENDER REGISTRATION ACT (SORA). 24
THE STATUTE PROHIBITING SEX OFFENDERS ON PAROLE FROM BEING WITHIN 1000 FEET OF SCHOOL GROUNDS APPLIES TO YOUTHFUL OFFENDERS (CT APP). 24
SEX OFFENDER REGISTRATION ACT (SORA). 25
THE STATUTE PROHIBITING SEX OFFENDERS FROM BEING WITHIN 1000 FEET OF SCHOOL GROUNDS AS APPLIED TO SEX OFFENDERS CONVICTED BEFORE THE STATUTE WENT INTO EFFECT DOES NOT VIOLATE THE EX POST FACTO CLAUSE; HERE PETITIONER WAS INCARCERATED PAST HIS PAROLE DATE BECAUSE HOUSING WHICH COMPLIED WITH THE SCHOOL GROUNDS LAW COULD NOT BE FOUND (CT APP). 25
SEX OFFENDER REGISTRATION ACT (SORA). 26
THE STATUTE PROHIBITING SEX OFFENDERS ON PAROLE FROM BEING WITHIN 1000 FEET OF SCHOOL GROUNDS APPLIES TO YOUTHFUL OFFENDERS (CT APP). 26
STREET STOPS, REASONABLE SUSPICION. 27
ALTHOUGH DEFENDANT’S GRABBING AT HIS WAISTBAND AND RUNNING DID NOT PROVIDE REASONABLE SUSPICION, THE MAJORITY HELD DEFENDANT’S STOPPING HIS CAR IN THE STREET AND AGGRESSIVELY APPROACHING A WOMAN IN ANOTHER CAR PROVIDED REASONABLE SUSPICION; THE DISSENT DISAGREED (FOURTH DEPT). 27
STREET STOPS, SUPPRESSION, LEGALITY OF POLICE CONDUCT. 28
THE PEOPLE DID NOT DEMONSTRATE THE DEFENDANT VIOLATED THE VEHICLE AND TRAFFIC LAW BY WALKING IN THE MIDDLE OF THE STREET AT THE TIME OF THE STREET STOP; THEREFORE THE PEOPLE DID NOT DEMONSTRATE THE LEGALITY OF THE POLICE CONDUCT AND THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT). 28
STUN BELT ON DEFENDANT DURING TRIAL. 30
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). 30