Unofficial stats: June 2005 Term

June 2005 Term: Unofficial Stats

Here are my unofficial stats for the Fourth Department's June 2005 term, based on the cases posted on the Court's website:

Total criminal cases decided: 44
Reversals or modifications: 6

Of those six reversals, one was a People's appeal. (See People v Forsythe[County Court erred in finding insufficient evidence before grand jury to support indictment].) Here are the other reversals of note:

People v Santiago: Fourth Department reduced Defendant's SORA risk classification reduced in the interest of justice from "3" to "2", where defendant's lone sex crime conviction was a Rape 3rd, and the "record establishes . . . that the victim willingly engaged in sexual activity with defendant at a time when she was only a few months from the age of 17."

People v Vogel: finding, as a matter of discretion and in the interest of justice, that defendant's sentence would be vacated and the matter remanded for resentencing where the People agreed not to make a sentencing recommendation and "they failed to honor that agreement at the time of sentencing." Judge Scudder dissented, arguing that 1) defendant's waiver of the right to appeal encompassed the issue raised by defendant, 2) the issue was not preserved, and he would not reach it in the interest of justice, and 3) the prosecutor's promise not to make a sentence recommendation was made in a letter conveying the plea offer, and was not subsequently put on the record, and thus was not part of the plea agreement.

People v Goodwill: defendant allowed to withdraw his guilty plea where the lower court did not advise the defendant "of the mandatory period of postrelease supervision, which is 'a direct consequence of his conviction.'"

The only other decision from the June packet deserving mention is People v Young. Defendant's robbery and burglary convictions had previously been reversed on the ground that defendant had been selected as the result of an unduly suggestive lineup procedure, and the matter was remanded for a hearing to determine if the eyewitness had an independent basis for her identification of defendant. On remand, the lower court determined that such an independent basis existed, and a majority of the Fourth Department agreed, finding "that, although defendant's face was partially covered, she had a clear view of defendant's eyes in well-lit conditions for approximately 5 to 7 minutes and that she studied his face in an effort to determine whether he was someone she knew." (Young at 1.)

Judges Hurlbutt and Gorski dissented, arguing that the People failed their burden to prove an independent basis by, 1) the suspects face was mostly covered during the incident, 2) the witness could not even help the police construct a composite sketch of the suspect immediately after the incident, 3) the witness could not pick defendant out of a photo array conducted a month after the incident. (Young at 1-2.) Based on these facts, the dissenters would have found that "the inability of the victim to assist the police in constructing a composite of the intruder and her inability to select defendant from a photo array prior to the lineup identification procedure strongly suggest that her alleged independent 'recollection' of defendant was irrevocably tainted by her having viewed defendant in the lineup and having heard him speak. We therefore must conclude that any in-court identification testimony by the victim 'would be derived from exploitation of the illegal arrest'". (Id.

The majority's opinion in Young reaffirms how weak eyewitness identification issues have become for criminal defendants. Even if an identification procedure is conducted that is clearly suggestive and thereby taints an eyewitness' in-court identification of a defendant, almost anything qualifies as an "independent basis" for the identification sufficient to render the unduly suggestive procedure supposedly 'harmless.'