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#318 Third Department Caselaw Round-Up for March 8, 2012, Part 1 of 3

March 28, 2013

318 Post 03-08-12, Part 1 Third Department March.pngRobbing children is most definitely uncool. It should be near the top of everyone's list of Things I Should NEVER Do. Yet, some people seem never to have gotten the memo.

The second case is from Bizarro World.


318 Post-2 Albany County.pngCase #183
#104059
People v. Smith
Albany County-Breslin
Issues: Criminal Charges; Ineffective Assistance of Counsel; Youthful Offenders
Cited statutes: PL §70.00
Affirmed

The defendant thought it was a good idea to force his way into the home of a 9 year old boy and then rob the boy of his videogame system at knife point. When the boy's grandfather tried to intervene, the defendant knocked the man down and fled with the stolen property. The defendant was later arrested and pled guilty to robbery in the first degree, receiving a sentence of 1 2/3 to 5 years in prison, after the court denied the defendant youthful offender status.

The defendant appealed.

Interestingly, the defendant's appeal waiver "forecloses any review of the denial of the defendant's request for youthful offender status", which is presumably the reason for the appeal in the first place (D'oh!). The next argument is ... wait for it ... ineffective assistance of counsel. However, there's a slight problem here as well. Because the defendant "failed to move to vacate the judgment of conviction or withdraw his plea", this claim is also unpreserved for appeal (double D'oh!).

Of course, the last refuge of a criminal defendant on appeal is to argue the obvious: the sentence is harsh and excessive. No dice, says the Third Department. Once again, such a claim is precluded upon a waiver of the right to appeal (triple D'oh!).

What about the sentence being illegal? A-ha! That particular claim is not precluded by the waiver of appeal. However, the court thought otherwise, finding the sentence to be legally imposed. And, thus, another criminal appeal is shot down in flames. Game over.


318 Post-3 Columbia County.pngCase #184
#103752
People v. Howes
Columbia Supreme-Czajka
Issues: Criminal Charges; Orders of Protection
Cited statutes: CPL §530.12
Modified

This one smells like ... pay-back - which was why it was modified by the Third Department.

The defendant pled guilty to criminal contempt in the third degree for violating an order of protection. The plea agreement granted the defendant a conditional discharge and an order of protection (full stay away) for three (3) years, to protect the victim. Also, a second order of protection was to issue for the purposes of limiting the defendant's contact with his children to supervised visitation (presumably not supervised by the victim, the children's mother).

Overall, not bad. So what's the problem? The problem is that the defendant either forgot or blew off his appointment with Probation for the presentence investigation report interview. The judge was apparently angered over this and advised the defendant that the court was not going to abide by the terms of the plea agreement and, instead, issued an order of protection prohibiting all contact between the defendant and his children and sentenced the defendant to a year in jail - all presumably without so much as a hearing!

Worse, while the "defendant was orally advised [By whom? The court? The defendant's attorney? The decision doesn't make this point clear] that the court's order would prohibit contact between [the] defendant and his children until he was released from jail, ... the order [of protection] entered was for three years."

Quite understandably, the defendant appealed what appeared to be some sort of double-cross by the judge himself. In a prior post I mentioned, in passing, the issue of pay-back by a judge, and how it's often very hard to determine. Does this pass the smell test to you? It doesn't to me. This has the rotten smell of pay-back.

"[The] defendant's sole contention on appeal is that the order of protection issued in favor of the children was harsh." Ya think? Pointedly, the "defendant's conduct did not directly involve the children and there is no evidence in this record justifying a three-year stay away order of protection in their favor." Even more to the point: "notably, the People, the victim and the attorney for the children all agreed that supervised visitation was appropriate." WTF indeed.

Note that both the judge in this case and the district attorney are the same person. Strike you as a little bit odd?