Wednesday, September 24, 2008

Fourth Department Decisions Issued 11/9/2007

People v Adams, 2007 NY Slip Op 08571 [4th Dept 11/09/07] - holding that

the court erred in increasing defendant's sentence from concurrent to consecutive terms after he refused to sign the no-contact order of protection. That "increase cannot be justified under sentencing procedures nor supported under the guise of punishment for contempt of court" (People v Culpepper, 33 NY2d 837, 838, cert denied 417 US 916).

However, this decision is also a reminder that a defendant who received an unlawfully low sentence might want to think twice before appealing:

we conclude that the sentence is illegal because it was not in compliance with Penal Law § 70.06 (4) (b). The court sentenced defendant to terms of 2 to 7 years on the burglary [*2]count and 1 to 4 years on the criminal contempt count but, pursuant to section 70.06 (4) (b), the minimum period of imprisonment for an indeterminate sentence must be one half of the maximum imposed (see generally People v Chappelle, 282 AD2d 834).

People v Huggins, 2007 NY Slip Op 08619 [4th Dept 11/9/07] -- pointing out a limit on waivers of appeal:

Defendant's further contention that the enhanced sentence is unduly harsh and severe also is not encompassed by the waiver of the right to appeal "because the court failed to advise defendant of the potential period of incarceration that could be imposed" for an enhanced sentence (People v Trisvan, 8 AD3d 1067, lv denied 3 NY3d 682; cf. People v Jackson, 34 AD3d 1318, lv denied 8 NY3d 923; see generally People v Lococo, 92 NY2d 825, 827).

People v Mills, 2007 NY Slip Op 08573 [4th Dept 11/09/07] -- reversing for failure to charge justification based on a choice of evils defense:

Defendant testified that he and another passenger in the vehicle were arguing and subsequently engaged in a fistfight outside the vehicle. When a group of men gathered around the fistfight, defendant became fearful that he would be attacked by the group, whereupon he entered the vehicle and drove from the scene. County Court erred in denying defendant's request for a justification charge. Considering the evidence in the light most favorable to defendant, we conclude that there is a reasonable view of the evidence that defendant's conduct was justified "[u]nder the choice of evils' theory of Penal Law § 35.05 (2)" as a means to avoid an imminent attack (People v Maher, 79 NY2d 978, 981; see People v Padgett, 60 NY2d 142, 145-146; People v Newman, 3 Misc 3d 361, 363).

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