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#296 Third Department Caselaw Round-Up for February 2, 2012, Part 3 of 5

156 Post-1 02-02-12, Part 3 Third Department February.pngThe first case is rather maddening insofar as it is an Anders Brief case that has now returned to the court on the very issue the court had concerns about – only to have the court now blithely dismiss those concerns. So, why was the Anders Brief not accepted in the first place? Yeah, good question.

The second case presents the conundrum of having a court order that has not yet been reduced to writing. Do you wait for the court order to be reduced to writing or do you file the notice of appeal without a written order? Better practice is to file a timely notice of appeal, with or without the written order.

156 Post-2 Franklin County.pngCase #147 #101783B
People v. Baker, ___ A.D.3d ___, ___ N.Y.S.2d ___ Franklin County – Main Issues: Anders Brief; Criminal Charges Cited statutes: None Affirmed

This is one of those instances where the Third Department leaves you scratching your head and saying “Huh?” The last time it came before the court, appellate counsel submitted an Anders Brief, stating that there were no non-frivolous issues to appeal. The Third Department disagreed, and assigned new appellate counsel to the defendant, specifically with regard to addressing the severity of the sentence.

Act Two shows new appellate counsel now making the argument that the defendant’s sentence is harsh and excessive (which is an argument that is extremely easy lose, and should only be made in conjunction with other arguments, if at all possible). But, here’s the thing: the sentence is quite obviously not harsh or excessive (as prior appellate counsel no doubt determined as well), given what the defendant has done. Even a layperson would likely consider the defendant’s sentence not to be a harsh or excessive one.

The defendant was convicted of Attempted Sexual Abuse in the First Degree and was originally sentenced to probation. However, he violated the terms of his probation twice by continuing to have contact with children under the age of seventeen – even though such contact was specifically prohibited. As a result, the defendant was resentenced to a term of one to three years in prison.

This result is strange but it only serves to confirm what I have been repeating over and over and over again: avoid submitting an Anders Brief at all costs, if at all possible. In trying to make sense of this decision, the only thing I can think of is that it does establish a precedent for this fact pattern, which might have been all the Third Department was really looking for in the first place – a baseline sentence for probation violators of this specific crime.

156 Post-3 Schenectady County.pngCase #148 #103404
People v. Walker-Llanos, ___ A.D.3d ___, ___ N.Y.S.2d ___ Schenectady County – Giardino Issues: Criminal Charges Cited statutes: CPL ยง440.46 Dismissed

Another Drug Law Reform Act case, but with a slight twist.

The defendant pled guilty to various felony drug offenses and was sentenced to concurrent terms of eight to sixteen years in prison. The defendant thereafter petitioned the court for resentencing, pursuant to the Drug Law Reform Act of 2009. The court denied the petition from the bench. The defendant appealed the bench order.

The Third Department made clear that it did not have the jurisdiction required to even hear the appeal since the order being appealed from was a bench order and not a written order, as is required by the statute in question. Therefore, the court dismissed the appeal, but did so with the directive to remit the matter back to the trial court (presumably for the purpose of actually issuing a written order or otherwise disposing of the matter).

Now, you might think, why the heck would an attorney appeal a bench order when a written order is required? Good question. The answer is time. In general, one has only thirty (30) days within which to file a notice of appeal of a court order – thirty-five (35) days when that court order is served upon you by mail. What if the court’s intention is to reduce the bench order to a written order but it’s now the 29th day since the bench order was issued by the court and you haven’t received the written order? Any decent attorney simply has to presume that the date of the issuance of the bench order is the date at which any appellate court will “start the clock”. Therefore, bench order or not, the order has to be timely appealed in order to preserve the client’s appellate rights. Once the court finally provides the attorney with the written order, all the attorney would have to do is file a supplemental (and timely) notice of appeal.

Once again: when in doubt, file the notice of appeal.

Caselaw Round-Up Score Card:

Affirmed: 100 (67.57%)
Decision Withheld: 6 (4.05%)
Dismissed: 10 (6.76%)
Modified: 11 (7.43%)
Reversed: 20 (13.51%)

Total: 148