Sunday, February 8, 2009

Two Reasons Why Appellate Attorneys Fear a Failure to Identify a Valid Issue

Appellate attorneys recognize that the most critical portion of the job is issue identification. That is because generally, an appellate court is not going to grant relief not requested. So appellate attorneys are understandably afraid that a missed issue will result in a client failing to obtain relief to which he is entitled. But they also fear the embarrassment that they will miss an issue and the Court will find it and grant relief sua sponte. That is what happened in both People v Bunnell (2009 NY Slip Op 00752 [4th Dept 2/6/09]) and People v Erb (2009 NY Slip Op 00881 [4th Dept 2/6/09])

In Bunnell the Court vacated the restitution order, on the basis of an error neither objected to at the trial court, nor raised on appeal. The Court explained

A restitution hearing was conducted by County Court's court attorney, after which the court attorney prepared a preliminary fact-finding report. The court affirmed the report and ordered defendant to pay $8,883.99 in restitution, plus a 5% surcharge. We conclude that the court erred in delegating its responsibility to conduct the restitution hearing to its court attorney. We reach this issue sua sponte, as a matter of discretion in the interest of justice (citations omitted). Penal Law § 60.27 (2) provides that, upon the defendant's request, "the court must conduct a hearing" with respect to the amount of restitution in accordance with the procedures set forth in CPL 400.30. CPL 400.30 does not contain a provision permitting the court to delegate its responsibility to conduct the hearing to its court attorney or to any other factfinder. We therefore modify the judgment by vacating the amount of restitution ordered, and we remit the matter to County Court for a new hearing to determine the amount of restitution in compliance
with Penal Law § 60.27.


In Erb the Court held, sua sponte, that that absent a waiver of the right to a hearing, it was error for a court to raises a defendant's SORA risk level without a hearing.

Although the total risk factor score on the risk assessment instrument (RAI) prepared by the Board of Examiners of Sex Offenders (Board) resulted in the presumptive classification of defendant as a level one risk, County Court agreed with the Board's recommendation that an upward departure from defendant's presumptive risk level was warranted based on aggravating factors not taken into account by the RAI. Although defendant has not raised the issue, we conclude that his right to due process was violated based on the failure of the court to conduct a hearing before making its determination of defendant's risk level, as expressly required by Correction Law § 168-n (6). " [T]he due process protections required for a risk level classification proceeding are not as extensive as those required in a plenary criminal or civil trial' " (People v Brooks, 308 AD2d 99, 105, lv denied 1 NY3d 502, quoting Doe v Pataki, 3 F Supp 2d 456, 470). Nevertheless, although defendant waived his right to appear in person and to submit materials, there is no indication in the record before us that he waived his right to a hearing (see generally People v Costas, 46 AD3d 475, lv denied 10 NY3d 716). Indeed, Correction Law § 168-n (6) requires that, "[i]f a sex offender, having been given notice . . . of the determination proceeding in accordance with this section, fails to appear at this proceeding, without sufficient excuse, the court shall conduct the hearing" and make its determination. It does not provide that the failure to appear constitutes a waiver of the right to a hearing. We therefore reverse the order and remit the matter to County Court for a hearing and new risk level determination in compliance with Correction Law § 168-n.

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