#370 Third Department Caselaw Round-Up for May 10, 2012, Part 2 of 4

April 29, 2013

370 Post 05-10-12, Part 2 Third Department May.pngThe first case is one concerning a sex offender appealing his risk assessment level. Silly sex offender.

The second case illustrates that mootness of an appeal trumps the need for the filing of an Anders Brief.

370 Post-2 Broome County.pngCase #251
People v. Ackley
Broome Family-Smith
Issues: Criminal Charges; Sex Offenders
Cited statutes: Corrections Law Art. 6-C

The defendant pled guilty to criminal sexual act 2nd and was sentenced to 2 to 4 years in prison. Thereafter, the defendant pled guilty to attempted sexual abuse 1st and was sentenced to 2 to 4 years in prison to be served concurrently with the first prison term. Prior to the defendant's release from prison BESO (the Board of Examiners of Sex Offenders) classified him as a "risk level III sexually violent offender" - effectively the kiss of death. Unsurprisingly, even after a hearing, lo and behold, he remained a level 3 sex offender (what was the point of the hearing again? Oh, right: the appearance of due process!).

The defendant appealed. And lost.

The People were able to set forth clear and convincing proof that the defendant had "engaged in a continuing course of sexual misconduct" with a 14-year old victim. The defendant had engaged in sexual contact with the victim on five separate dates.

Now don't get me wrong: sex offenders deserve to be punished, like any other criminal. However, unlike every other criminal, sex offenders are forever punished by society and their so-called risk assessment hearings are a mockery of justice. In my opinion, the SORA law is sorely in need of being revisited and it ultimately needs to be completely overhauled.

Case #252
Young v. Espada
Broome Family-Pines
Issues: Anders Brief; Best Interests; Jail; Supervised Visitation
Cited statutes: FCA Art. 6

The father filed a petition for supervised visitation while he was in jail. The court dismissed the petition without prejudice, with the understanding that the father could re-petition the court for similar relief upon his being assigned to a given state prison.

Instead, the father appealed.

And, because, by the time the appeal was perfected, the father was now incarcerated in prison, the appeal became moot. Appellate counsel filed an Anders Brief, but the Third Department saw no need for such a brief, given the mootness of the appeal. Basically, six of one and half a dozen of the other.

The Third Department, like the court below, advised the father that the proper course of action "would be for [the father] to file a new petition that would afford Family Court an opportunity to evaluate the children's best interests under [the father's] current circumstances".