Just because the indictment charges a particular crime does not mean that the conduct alleged, if proved, established the actual elements of the crime. A defense attorney cannot assume that the prosecutor read the statute in the light most favorable to your client. Rather, in every case you must read the language of the charged crime and try to determine both what that language means and whether the charged conduct fits within that definition.
Similarly, at sentencing one cannot assume that the probation department, prosecutor or court have correctly determined what sentences can or must be imposed in your client’s case. Rather, it is incumbent on defense counsel to read the statutory language to independently determine the applicable sentencing options. People v Bush (2013 NY Slip Op 00854 [4th Dept 2/8/13]) is an example of how courts may err on sentencing. In Bush, the defendant urged on appeal that the portion of his sentence imposing a three-year conditional discharge and an ignition interlock device requirement is illegal inasmuch as he committed the offense prior to the effective date of the statute imposing those requirements. The Appellate Division, Fourth Department, agreed, and therefore modified the judgment by vacating those provisions.The Court explained that “[p]ursuant to the Laws of 2009 (ch 496, § 15), the amendments to, inter alia, Vehicle and Traffic Law § 1198 are not applicable to defendant because he committed his offense before November 18, 2009, the date of the enactment of those amendments.” People v Bush (2013 NY Slip Op 00854). Thus, attentive counsel noticed what the sentencing court did not – the effective date of those sentencing provisions.
