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#294 Third Department Caselaw Round-Up for February 2, 2012, Part 1 of 5

154 Post-1 02-02-12, Part 1 Third Department February.pngWe haven’t seen a reversal in a while, and the first case gives us one, since doing so was in the interests of justice and as a matter of law.

The second case is of a variety that will be recurring in these various posts: a sex offender. A failure to register as a sex offender used to be a class A misdemeanor. However, as of 2007, failing to register as a sex offender is now a class E felony. What’s the difference, you ask? It’s jail versus prison.

154 Post-2 Broome County.pngCase #143 #104090
People v. Allen, ___ A.D.3d ___, ___ N.Y.S.2d ___ Broome County – Smith Issues: Criminal Charges Cited statutes: CPL §440.46 Reversed

In 1999, the defendant pled guilty to the crime of Criminal Sale of a Controlled Substance in the Third Degree and received a sentence of 4 ½ to 9 years in prison. While on parole, the defendant got into some trouble, was arrested, and was remanded to prison.

In 2010, the defendant moved to be resentenced pursuant to the Drug Law Reform Act of 2009. The court denied the defendant’s motion, claiming that the defendant “was ineligible for resentencing because of his status as a parole violator and his commission of an exclusionary offense subsequent to the drug offense for which he sought resentencing.”

The defendant appealed and, tellingly, the People conceded that a reversal is required.

The Third Department found that “neither [the] defendant’s status as a parole violator nor his commission of a violent felony offense, subsequent to the drug offense at issue, renders him ineligible for resentencing as a matter of law.” This is very likely why the defendant sought the resentencing in the first place.

On this one, it’s hard to blame the trial court – unless the defendant was pro se. If the defendant was represented by counsel, one has to wonder if the attorney even bothered to read the pertinent parts of the Drug Law Reform Act of 2009.

154 Post-3 Columbia County.pngCase #144 #103587
People v. Knott, ___ A.D.3d ___, ___ N.Y.S.2d ___ Columbia County – Nichols Issues: Criminal Charges; Ineffective Assistance of Counsel Cited statutes: None (see generally Correction Law Art. 6-C [Sex Offender Registration Act (SORA)]; specifically §168-t)

The defendant, a risk level 3 sex offender (the most dangerous), pled guilty to the crime of Failure to Register as a Sex Offender. He was sentenced to 1 1/3 to 4 years in prison. The defendant appealed.

The Third Department found that the defendant’s claim of ineffective assistance of counsel was unpreserved for appeal given that the defendant failed to move to withdraw his guilty plea or move to vacate the judgment of conviction. The remainder of the defendant’s arguments left the court unconvinced.

Sex offender appeals are very difficult to win, for reasons which I shall go into in a series of blog posts in the future. In fact, I just finished a SORA appeal and am waiting for the court to calendar it for its next term. And while I think my client has a very good case, I think his chances are nonetheless slim. With any luck, we will win the appeal and then I will analyze the case here in a few more months.

Caselaw Round-Up Score Card:

Affirmed: 98 (68.06%)
Decision Withheld: 6 (4.17%)
Dismissed: 8 (5.56%)
Modified: 11 (7.64%)
Reversed: 20 (13.89%)

Total: 144