In addition to maintaining this blog on its website, ETKS has long-maintained a separate blog entitled “New York Criminal Defense,” accessible at http://newyorkcriminaldefense.blogspot.com/.
SORA Risk Assessment Guidelines Strictly Construed
In People v Aldrich (2008 NY Slip Op 08916 [4th Dept 11/14/08])the Court lowered a defendant;s risk level upon concluding that the lower court had incorrectly assessed 30 points. First, the Court held “that the court erred in assessing 25 points for attempted sexual intercourse because there was no evidence of actual sexual intercourse between defendant and the victim as required to assess points under the category of ‘Sexual contact with victim.'” Additionally, it...
read moreWhen Can A One On One Killing Support A Depraved Indifference Murder Conviction?
The Court of Appeals has held that “[a] defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances” (People v Suarez, 6 NY3d 202, 212. But what those circumstances areremains unclear. In People v Lagasse (2008 NY Slip Op 08799 [4th Dept 11/14/08]) the Court held that the evidence was legally insufficient to prove depraved indifference murder in a case involving a one...
read moreWhen Is a Win Not a Win?
In People v Backus (2008 NY Slip Op 08772 [4th Dept 11/14/2008)] the defendant won on his claim that the consecutive sentence imposed was illegal. However, a panel of the Fourth Department divided 3-2 as to the appropriate remedy, with the majority holding that on remitter of the matter to County Court to resentence defendant the court should “entertain a motion by the People, should the People be so disposed, to vacate the plea...
read moreDisclosure After Two Years Is Not A Prompt Outcry
What constitutes a prompt outcry permitting the admission of hearsayis a relative concept dependent on the facts. In People v Workman (2008 NY Slip Op 08801 [4th Dept 11/18/08]) the Court held that the trial court erred in admitting in evidence the testimony of the boyfriend of the victim concerning her disclosure of the sexual abuse two years after the last incident of abuse. The court admitted the testimony as a prompt outcry, inasmuch...
read moreVindictiveness In Sentencing After Retrial
In People v Young(94 NY2d 171) the defendant had originally received an aggregate sentence of 45 years to life, including a sentence of 2-4 years on a count of criminal possession of stolen property. On retrial he was acquitted of a all counts other than the stolen property charge for which he was sentenced, as a persistent felon, to 25 years to life. This increase from 2-4 years to 25 years to life was...
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