In Absentia SORA Hearing Error Absent Proof of Notice of Hearing
Due process applies to SORA hearings. Thus, in People v Distaffen (2010 NY Slip Op 02634 [4th Dept 3/26/2010]), “[t]he People candidly conceded “that County Court violated the due process rights of defendant when it held the SORA hearing in his absence without verifying that he had received the letter notifying him of the date of the hearing and his right to be present (citations omitted).” The Court therefore reversed the order and remit...
read moreJurors Who Would Favor The Testimony of Police Are Not Qualified To Serve
In People v Arnold (96 NY2d 358, 363) the Court of Appeals held that when a prospective juror makes a statement or statements that “cast serious doubt on [his or her] ability to render an impartial verdict” (People v Arnold, 96 NY2d 358, 363), that prospective juror must be excused for cause unless he or she provides an “unequivocal assurance that [he or she] can set aside any bias and render an impartial verdict...
read moreEvidentiary Errors Lead To Reversal of Sex Crime Conviction
In a rape and sexual abuse trial the trial court refused to allow the defendant to cross-examine the complainant regarding a baseless similar complaint that she had previously made. On the other hand, without a Ventigmigla hearing, the court permitted the People to introduce evidence that the defendant had told the police that, “in the past[,] he had tried forcing sex from women.” In People v Loftin (2010 NY Slip Op 02619 [4th Dept...
read moreAppellate Division Orders Defendant Restored To Probation After Revocation by Lower Court
Although the lower court had not abused its discretion in revoking the sentence of probation based upon defendant’s admitted violations thereof, the Fourth Department in People v Rapone (2010 NY Slip Op 02611 [4th Dept 3/26/2010])reversed that court’s revocation of probation based on a probation violation and its imposition of a prison sentence, and ordered that the sentence of probation originally imposed be continued. The keys facts are as follows: The original sentence imposed...
read moreSORA Can’t Be Imposed Eleven Years after Expiration of Sentence
In People v Gregory (2010 NY Slip Op 02608 [4th Dept 3/26/10]) the Fourth Department has held that the imposition of SORA registation requirements 11 years after the expiration of the defendant’s sentence was impproper. Although the Court rejected defendant’s contention that the six-year statute of limitations in CPLR 213 applies to this SORA classification proceeding, it concluded that vacatur of defendant’s risk level determination is appropriate. Although Correction Law ยง 168-l (8) expressly...
read moreMore on Melendez Diaz
Recently I wrote about how the Supreme Court decisions in Melendez-Diaz(129 S.Ct. 2527 [June 25, 2009]) and Briscoe v Virginia (559 US ___ [1/25/10]) appeared to undermine and contracidt hte holdings of the New York Court of Appeals in People v Rawlins and People v Meekins (10 N.Y.3d 136 [2/19/2008]). Donald Rehkopf, Esq (of the Firm of Brenna, Brenna, and Boyce) provides some useful information for those seeking to challenge those holdings: Just read...
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