Published on:

#299 Third Department Caselaw Round-Up for February 9, 2012, Part 1 of 2

160 Post 02-09-12, Part 1 Third Department February.pngFirst up is a SORA appeal that probably could have been disposed of via an Anders Brief.

Next up is an Anders Brief where I honestly thought there wouldn’t be one, since the issues raised on appeal looked like the Third Department would be eager to engage in rigorous analysis. But no.

160 Post-2 Broome County.pngCase #152 #511372
People v. Smith, ___ A.D.3d ___, ___ N.Y.S.2d ___ Broome County – Smith Issues: Criminal Charges Cited statutes: Correction Law Art. 6-C (SORA)

The defendant pled guilty to Rape in the First Degree and a Criminal Sexual Act in the First Degree. He was sentenced to five (5) years in prison and five (5) years of post-release supervision.

The Board of Examiners of Sex Offenders (BESO) recommended that the defendant be classified as a Risk Level 3 Sex Offender, the most serious level. This was based upon “an override factor” which is never defined or explained in the decision, much to the annoyance of attorneys like myself. Suffice it to say that this is the equivalent of the Court effectively saying “Dude’s a badass!” because he inflicted serious physical injury upon his victim, though, again, the decision is mute on exactly what Mr. Badass did.

The defendant didn’t even bother to appear for his hearing (probably thinking that it wouldn’t make much difference either way – and he was probably right). Nevertheless, the defendant appealed.

So, what could be a possible basis for the defendant’s appeal? He alleged that his waiver of the SORA hearing was not “knowing, voluntary, and intelligent”. The Court made quick work of this since the record revealed that the trial court advised him of the gravity of his decision not to pursue the SORA hearing, that he was entitled to the SORA hearing, and that he would be granted an adjournment to prepare for the SORA hearing, if he so desired. In turn, the record revealed that the defendant 1) understood the court’s admonitions, 2) stated that he had sufficient time to discuss the matter with his attorney, and, most importantly of all, 3) stated that he did not wish to contest the BESO’s Level 3 recommendation.

Frankly, this is the sort of appeal that I suspect is deserving of an Anders Brief and which I also suspect the Court would likely grant. Very simply: there was nothing to appeal here.

160 Post-3 Rensselaer County.pngCase #153 #103092
People v. Humphrey, ___ A.D.3d ___, ___ N.Y.S.2d ___ Rensselaer County – Czajka Issues: Anders Brief; Criminal Charges Cited statutes: CPL ยง440.30 Affirmed

The defendant was convicted of three counts of Rape in the Second Degree, and his conviction was affirmed on appeal. Thereafter, he made a motion “seeking to have DNA evidence collected from the victim [to be] produced for comparison with his own DNA.” He also sought to have his conviction vacated on the grounds that he was denied his constitutional right to confront the People’s witnesses against him. The trial court denied the defendant’s motion and he appealed.

And just as you think we’re about to dive into an enlightening slice of substantive criminal law and procedure – BAM! – another Anders Brief! Frankly, I was hoping that there was something to appeal because this one looked particularly interesting. However, the Third Department agreed that an Anders Brief was appropriate.

Caselaw Round-Up Score Card:

Affirmed: 104 (67.97%)
Decision Withheld: 6 (3.92%)
Dismissed: 10 (6.54%)
Modified: 11 (7.19%)
Reversed: 21 (13.73%)

Total: 153