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#289 Third Department Caselaw Round-Up for January 19, 2012, Part 3 of 4

February 13, 2013

147 Post-1 01-19-12, Part 3 Third Department January.pngThe first case is a lesson in appealing each order or waiting to appeal a final order. It is also a lesson in making sure that your appellate argument matches up with the proper order.

The second case is as interesting as it is farcical. Frankly, the defendant is very lucky he was reprimanded so lightly.

You may also note a pattern to the various criminal appeals included herein. Because sex offenses against children are among the most heinous crimes a human can perpetrate against another, I intend to highlight these appeals as they come up. Also, some of the criminal appeals are included simply for levity (like some of the wilder DWI cases). Also, I find SORA (Sex Offender Registration Act) appeals very interesting, so expect many more of these as well.


147 Post-2 Otsego County.pngCase #135
#512205
Matter of Christian NN., ___ A.D.3d ___, ___ N.Y.S.2d ___
Otsego Family - Lambert
Issues: Abuse; Derivative Abuse; Psychological Evaluations; Visitation
Cited statutes: FCA Art. 10
Affirmed

Pursuant to a fact-finding order, the father was found to have derivatively abused his son. However, the father never appealed this order. The remaining issue was whether or not the father should be permitted any visitation with his son, who lived with his maternal grandmother, in Missouri. Before the court would even consider the question of the father's visitation, it determined that psychological evaluations of the father and son would be necessary. The father appealed the order directing psychological evaluations.

The father argues on the appeal of the order directing psychological evaluations that the court's finding of derivative abuse is unsupported by the record. However, the only thing unsupported by the record is the father's argument: he appealed the wrong order if this is the argument he really wishes to put forward!

This is precisely the reason why any cautious attorney will always file a notice of appeal on each and every order in an Article 10 proceeding (where it appears to be needed). It protects the attorney from claims of ineffective assistance of counsel (and malpractice suits) and, more importantly, it protects the client. Of course, you run the risk of raising the ire of the court, but so what!? Your job, as attorney, is to zealously represent and protect your client, regardless of anything or anyone else. Any judge who gets annoyed with the filing of a notice of appeal is not a very good judge. The best judges know that the best attorneys do what they are supposed to do: protect their clients and their clients' rights.


147 Post-3 Ulster County.pngCase #136
#102897
People v. Bevilacqua, ___ A.D.3d ___, ___ N.Y.S.2d ___
Ulster County - Schneer
Issues: Criminal Charges; Pornography
Cited statutes: CPL ยง410.30; 410.70
Affirmed

The defendant appealed from a judgment that revoked his probation and imposed a sentence of imprisonment upon him.

The defendant originally pled guilty to Possession of an Obscene Sexual Performance by a Child. The charge was based upon materials that were discovered on his personal computer. As a result, he was sentenced to ten (10) years' probation. As one might reasonably expect, one of the terms and conditions of his probation was that he was not to possess any materials depicting nudity or sexual conduct.

Apparently - and very unfortunately for the defendant - another term and condition of his probation was to be randomly subjected to polygraph testing (Yikes!). Yeah, you can guess where this is headed. Thanks to such a polygraph test, the defendant made statements indicating that he knowingly possessed such materials. After probation officers searched his residence, they found "dozens of videos depicting sexual conduct, as well as several SD cards which contained one or more images of young girls naked or engaged in sexual acts."

Now, one might think that the defendant would be in serious trouble. Instead, all the defendant faced was a 60-day period of incarceration! Not years, days! And the defendant appealed the probation revocation. God only knows why.

This sort of appeal is almost nonsensical by its very nature as "probation violation hearings are summary in nature and evidence presented thereat may include hearsay, although that may not be the sole basis for the finding of a violation" of probation. The evidentiary threshold is so low that rarely is it not met. And when it is met, the burden then shifts to the defendant to establish a justifiable excuse for his violation - which is difficult if not impossible to do in most instances (as was the case here).

Thus, the defendant was left with the defense of claiming that his probation officer had failed to "provide him with a time frame within which he had to rid his home of the materials, the quantity (!!!) of items in his home that he had to sort through, and his difficulty in disposing of the contraband." Now, remember, the defendant's attorney would have to say all that, at oral argument, with a straight face. Here's a safe bet: expect laughter from the judges.


Caselaw Round-Up Score Card:

Affirmed: 91 (66.91%)
Decision Withheld: 6 (4.41%)
Dismissed: 8 (5.88%)
Modified: 11 (8.09%)
Reversed: 19 (13.97%)

Total: 136