Friday, June 09, 2006

AD4: Alford plea does not warrant point assessment for "failing to take responsibility" at SORA classification

People v Gonzalez, __ AD3d __ [available here]

Remember back in this post when I explained how the sex offender classification system in New York is points based, and if certain facts are present points are assessed? Under one of those categories, a defendant is given ten points if he does not accept responsibility for his actions. In Gonzalez, the defendant was assessed points under this category because his sex crime conviction was based on an Alford plea (where the defendant does not admit guilt or wrongdoing, but agrees to plead guilty to a crime [sometimes called a "no contest" plea]) to sex abuse in the first degree. The Fourth Department held that a defendant's Alford plea , "without more, does not warrant the board's assessment of 10 points for the purported failure of defendant to accept responsibility for his conduct [...]." (People v Gonzalez, __ AD3d at __.) The Court also noted that the points for being "armed with a dangerous instrument" (an element of sex abuse first) could not be given solely based on the guilty plea, because the Alford plea colloquy contain no admissions of facts. (See id.)

The only other decision worth noting from the Fourth Department's April term is People v Robinson, if only for the study in human persistence it provides. The facts were explained by the Court:

The first transaction involved the stabbing of a victim; the second involved tampering with a witness to the stabbing; the third involved tampering with the same witness on a different occasion and attempting to bribe him; and the fourth involved the shooting and attempted murder of the stabbing victim the day before trial on the stabbing incident was scheduled to begin.

(People v Robinson, __ AD3d at __.)

If at first you don't succeed, I guess. The legal question was a bit of a letdown; while noting that defendants generally have the right to be present "during Ventimiglia hearings or sidebar conferences", the "defendant's right to be present was not violated in this case because the only issue discussed was whether the testimony was more prejudicial than probative, and thus there was no potential for meaningful participation on defendant's part." (Id. at __.)