#371 Third Department Caselaw Round-Up for May 10, 2012, Part 3 of 4

April 29, 2013

371 Post 05-10-12, Part 3 Third Department May.pngThe first case involves ... another sex offender. Jesus, they're everywhere! I think you know the drill: affirmed.

The second case involves ... yet more sexual abuse of children. I guess I include these cases if only because I simply cannot understand how a human being can find sexual gratification in a child. The thought is so utterly repugnant to me that these specimens of flawed humanity hold some sick sort of bizarre fascination for me. I just can't understand how such people can think such horrific thoughts and then put such thoughts into action.

371 Post-2 Columbia County.pngCase #253
People v. O'Connell
Columbia County-Czajka
Issues: Criminal Charges; Sex Offenders
Cited statutes: Corrects Law Art. 6-C

This fine fellow pled guilty to rape 3rd and endangering the welfare of a child thanks to having sex with a 15-year old girl on a single occasion. BESO was merciful and classified the defendant as a level 1 sex offender. Not so, say the People. The People wanted an upward departure to a level 2. And they got it.

The defendant appealed (but god only knows why!).

And the key sentence of this decision is the epitome of why I believe the law needs to be changed: "an upward departure from a presumptive risk classification is justified when an aggravating factor exists that is not otherwise adequately taken into account by the risk assessment guidelines". In other words, despite the fact that after processing probably tens of thousands of sex offenders over the years, the system is so broken that it completely fails to take into account certain factors that it otherwise most definitely should take into account. This is my major problem with this area of law: it is utterly broken and it seems like no one could give a damn about fixing it.

Hey, here's a clue: convene executive, legislative, and judicial committees to give in depth study to this problem and address it with long-overdue legislative findings and concomitant laws. Until then, expect SORA hearings and appeals to be treated with the contempt they so dearly deserve.

Frankly, analyzing this case - and similar SORA decisions - is just a study in sadism. You want the details? Then go read the decision.

371 Post-3 Franklin County.pngCase #254
People v. Griswold
Franklin County-Main
Issues: Criminal Charges
Cited statutes: None

The defendant pled guilty to sexual abuse 1st and two counts of criminal sexual act 2nd. He was originally charged with 2 indictments for a total of "48 counts of various crimes involving the sexual abuse of his stepdaughter", beginning when the child was 7 years old (!!!) and continuing thereafter for nine years!!! The defendant was then sentenced to 3 consecutive terms of 5 years in prison for each count, followed by 10 years of post-release supervision.

The defendant appealed.

The arguments on appeal were:
1. The indictments were jurisdictionally defective; and
2. The indictments failed to provide the defendant with fair notice of the charges against him.

Not so said the Third Department.