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#319 Third Department Caselaw Round-Up for March 8, 2012, Part 2 of 3

March 29, 2013

319 Post 03-08-12, Part 2 Third Department March.pngThe first case is an example of how multiple indictments can sow the seeds of confusion, especially where an indecisive defendant is involved.

The second case is a SORA appeal involving a sexually violent risk level 3 sex offender.


319 Post-2 Cortland County.pngCase #185
#103678/103679
People v. Carpenter
Cortland County-Ames
Issues: Criminal Charges; Ineffective Assistance of Counsel
Cited statutes: None
Affirmed

While on probation, the defendant was charged, in 1998, with and indicted for with rape in the second degree and other crimes. The following year, in 1999, the defendant was charged with and indicted for sodomy in the first degree. At the very least, we get a general idea of the man's hobbies.

Unsurprisingly, the defendant's probation was revoked and he was resentenced to a term of 4 to 12 years in prison. Sometime thereafter, the defendant pled guilty to a crime in full satisfaction of the second indictment, with the sentence to run concurrently with his 4 to 12 year prison term. However, prior to sentencing, the defendant withdrew his plea. To complicate things, the defendant then pled guilty to another crime in full satisfaction of the first indictment. Part of this second plea (concerning the first indictment, in 1998) included the defendant's agreement to withdraw his motion to withdraw his plea regarding the prior matter (concerning the second indictment, in 1999). Confused yet? It gets better.

However, once again, the defendant got cold feet and withdrew his second plea prior to sentencing. But, before the defendant's motion to withdraw his second plea could be heard (concerning the 1998 indictment), the defendant was sentenced on his prior plea agreement (concerning the 1999 indictment).

At sentencing, the defendant had the chutzpah to claim that "his motion to withdraw his plea in relation to the 1999 indictment was revived by his motion to vacate his plea regarding the 1998 indictment where he agreed to withdraw his motion to withdraw his plea to the 1999 indictment as part of that plea bargain." Still with me?

The court was having none of it and went forward with the sentencing. Shortly thereafter, the court went forward with the sentencing on the 1998 indictment, denying the defendant's motion.

The defendant appealed.

The defendant's arguments on appeal are:

1. His guilty pleas were not voluntary;
2. His motions to withdraw his pleas should have been granted or given hearings; and
3. He was denied the effective assistance of counsel.

All the arguments failed to impress. The Third Department noted that "the fact that counsel did not join in the defendant's motion to withdraw the plea does not constitute ineffective representation." More likely, it constitutes due diligence and discretion on the part of counsel.


319 Post-3 Saratoga County.pngCase #186
#511730
People v. McFall
Saratoga County-Scarano
Issues: Criminal Charges; Sex Offenders; SORA
Cited statutes: None
Affirmed

The defendant "allegedly subjected two young victims to repeated sexual contact" which ultimately resulted in the defendant pleading guilty to one count of sexual abuse in the first degree.

Prior to being released from prison, the Board of Examiners of Sex Offenders (BESO) assessed the defendant as a risk level 3 sex offender, citing him for 115 points on the risk assessment instrument.

At the hearing, the defendant argued that the proof was insufficient to show that the defendant failed to participate in sex offender treatment while in prison. If so, then 15 points would be deducted, qualifying the defendant as a risk level 2 sex offender. However, the People were able to elicit evidence from the Department of Corrections "indicating that [the] defendant refused treatment." Thus, the court agreed with BESO and classified the defendant as level 3.

The defendant appealed.

There really was no basis for an appeal here. Why? Because one of the most essential elements of proof in these proceedings is the case summary and the case summary almost always throws the defendant under the bus. So, it's an uphill battle to begin with (which is why defendants sometimes waive appearing at these proceedings, seeing them more as kangaroo courts). Case summaries can be damaging, if not damning, if only because they contain hearsay. However, this hearsay is deemed to be "reliable hearsay" and can often be difficult to overcome.

Here, the case summary had already established that the defendant had refused to undergo sex offender (and substance abuse) treatment while in prison. Once the defendant denied this, the People introduced additional evidence that served to corroborate the reliable hearsay found in the case summary. At that point, it was game over. Ideally, what the defendant needed to do was to introduce his own evidence supporting his position - something he apparently was unable to do.

Again, these SORA appeals are exceedingly difficult to win. I am not exaggerating when I state that only about 4% (or less!) of SORA appeals result in a win for the defendant.