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#297 Third Department Caselaw Round-Up for February 2, 2012, Part 4 of 5

157 Post-1 02-02-12, Part 4 Third Department February.pngThe first case is another Anders Brief. Yeah, I’ve got a thing for Anders Briefs.

The second case features a reversal on a criminal appeal – something you do not often see. It is also another example of the need to make an adequate and clear record.

157 Post-2 Schoharie County.pngCase #149 #103731
People v. DeMartino, ___ A.D.3d ___, ___ N.Y.S.2d ___ Schoharie County – Bartlett Issues: Anders Brief; Criminal Charges Cited statutes: None Affirmed

The defendant pled guilty to the crimes of Forgery in the Second Degree and Criminal Possession of a Forged Instrument in the Second Degree. Pursuant to the terms of the plea agreement, the defendant was sentenced to concurrent terms of 2 ½ to 5 years in prison. The defendant appealed.

Appellate counsel, after a review of all of the pertinent legal documents and the record on appeal, determined that there were “no non-frivolous issues to be raised on appeal”. As such an Anders Brief was filed.

In this instance, the Third Department happened to agree with appellate counsel.

157 Post-3 Sullivan County.pngCase #150 #104002
People v. Catnott, ___ A.D.3d ___, ___ N.Y.S.2d ___ Sullivan County – LaBuda Issues: Criminal Charges Cited statutes: CPL §195.20; PL §70.45 Reversed

The defendant was indicted for the crime of Criminal Possession of a Controlled Substance in the Fifth Degree. The People indicated that the defendant would be indicted with further crimes once the results from the State Police lab were available.

In the meantime, the defendant entered into a plea agreement whereby he waived the indictment to the further charges, waived his right to appeal, and pled guilty to Criminal Possession of a Controlled Substance in the Third Degree, for which he was sentenced to 3 ½ years in prison. The defendant appealed.

In this instance, the Third Department found that the defendant’s waiver of his indictment was invalid. Why? Because the record does not reflect that the defendant’s waiver was effectuated in open court, despite the fact that the record shows the date of the written waiver of indictment. While the People argued that the defendant’s waiver of indictment was misdated and, in fact, executed in open court on a different date, nothing in the record supports this argument.

Therefore, since “the record does not reflect that [the] defendant’s written waiver complies with [the statute], as is strictly and unequivocally required”, the defendant’s plea must be vacated.

Once again, always, always, always get it in the record! Otherwise, things may not go so well upon appeal.

Caselaw Round-Up Score Card:

Affirmed: 101 (67.33%)
Decision Withheld: 6 (4.00%)
Dismissed: 10 (6.67%)
Modified: 11 (7.33%)
Reversed: 21 (14.00%)

Total: 150