Ed Sapone’s DECISIONS OF THE WEEK -January 4, 2019

Ed Sapone’s DECISIONS OF THE WEEK -January 4, 2019

| Jan 4, 2019 | Ed Sapone’s Decisions of the Week

Second Circuit

The Circuit did not release any precedential decisions this week, or any summary

orders in NYC area cases, but did release a summary order in a District of Connecticut

case reinforcing its focus on review of the legality of special conditions of supervised

release.

On Thursday, in United States v. Burden, in a summary order, the Circuit affirmed in part

the sentences imposed on defendants Burden and Caruso in the Connecticut District

Court, finding that the five-year terms of supervised release were appropriate,

but vacated and remanded in part, finding that six of nine special conditions of

supervision were improper.

On appeal, two defendants challenged, among other things, three special conditions of

supervised release. A third defendant’s counsel sought Anders relief, asking to be

relieved because the appeal presented no nonfrivolous issues. The Circuit found that

three of the conditions were improper, and remanded each defendants’ case for

resentencing, including the defendant whose counsel had sought to be relieved.

First, the Circuit found that one special condition impermissibly delegated the court’s

authority to restrict defendants’ liberty to the Probation Office by requiring that

defendants “participate in a program approved by the Probation Office for inpatient or

outpatient substance abuse treatment and testing.” The Circuit directed that, on

remand, the court should impose either outpatient treatment or inpatient treatment.

Second, the Circuit found that a special condition, which imposed a 40-hour per week

work or volunteer requirement, overlapped with the standard conditions of supervised

release, which imposed a 30-hour per week work requirement. Although the two

conditions were not inconsistent, the Circuit found that the court should clarify whether

the special condition took precedence.

Third, the Circuit found that there was a substantive discrepancy between the version of

a third special condition announced at each sentencing and the written version

contained in each judgment. At their sentencing hearings, the court announced that

defendants would each be subject to a curfew from 10 P.M. to 6 A.M., but the written

version of this condition did not include the curfew hours; the written version also

prohibited defendants from leaving their homes except for approved “employment,

community service, treatment, Probation Office meetings, programs, church, and

medical appointments[.]” The Circuit directed that, on remand, the court should clarify

which version of the special condition it intends to impose. If it were to choose to impose

the written version, defendants would be permitted to challenge that version at a

subsequent hearing.

The Circuit’s decision can be found here.

Appellate Division, First Department

On Thursday, People v. Laramore, the First Department vacated the 23-year sentence

imposed by Justice Steven Barrett in Bronx Supreme Court, because the court did not

expressly assess whether defendant was entitled to youthful offender treatment.

Significantly, in 2013 the Court of Appeals held that such an assessment was necessary

in every case of a potentially eligible youth, see People v. Rudolph, 21 N.Y.3d 497, but

the sentencing here took place in 2014 and no such assessment was made. The First

Department remanded for resentencing.

The First Department’s decision can be found here.

Appellate Division, Third Department

On Thursday, in People v. Madsen, the Third

Department vacated and dismissed multiple convictions for predatory sexual assault

against a child, criminal sex act in the second and third degrees, and sexual abuse in

the second and third degrees imposed in Montgomery County, finding that, as to some

counts the verdicts were against the weight of the evidence, and as to others the counts

were duplicitous. Despite the dismissals, a number of other counts were affirmed.

Defendant resided on a farm in the Town of St. Johnsville, Montgomery County. In 2005,

he sold some of his land to an Amish family with 15 children and, in the same year, he

met another Amish family with nine children. Between 2006 and 2013, three boys from

the first family and three boys from the second family worked periodically for defendant

doing odd jobs around the farm. During that time, defendant subjected all six to sexual

contact. In January 2014, one of the victims disclosed defendant’s conduct towards him

to a neighbor. The neighbor advised the State Police. An investigation ensued, during

the course of which the other victims made further disclosures regarding defendant’s

conduct toward them.

Defendant testified on his own behalf. He denied that he had sexual contact with any of

the victims when they were underage. He acknowledged that he had done so on a

consensual basis with some of the victims after they reached the age of consent, and

he asserted that the victims had falsely claimed that sexual contact had occurred when

they were underage because they feared repercussions in the Amish community for

having engaged in this consensual conduct.

Defendant was charged with multiple sex crimes. Following a jury trial, he was acquitted

of some, but convicted of others.

The Third Department found that three of the counts relating to one victim were against

the weight of the evidence. Each count charged defendant with criminal sexual act in

the second degree on the ground that he engaged in oral sexual conduct with victim 4

during the summer of 2010. Victim 4 testified that he “[did not] exactly remember” how

often defendant had oral sexual contact with him that summer, but he confirmed that it

had happened “[m]ore than once” and described two locations on the farm where it had

taken place. The Third Department found that, lacking any further evidence as to the

frequency of the acts, the weight of the evidence did not establish that defendant

engaged in oral sexual conduct with victim 4 on more than two occasions.

The Third Department also found that multiple counts were duplicitous, citing the counts

against victim 1 as an example.

Counts 1 and 2 of the indictment used identical language to charge defendant with

predatory sexual assault against a child on the ground that he committed the crime of

criminal sexual assault in the first degree against victim 1 during the summer of 2006.

Victim 1 testified that, during the summer of 2006 when he was 12 years old, defendant

put his mouth on victim 1’s penis at least two times. Likewise, counts 5 and 6 charged

defendant with criminal sexual act in the second degree consisting of oral sexual

conduct with victim 1 during the summer of 2007. Counts 7 and 8 charged defendant

with the commission of the same crime during the summer of 2008. Counts 9 through

12 charged defendant with the commission of two counts of criminal sexual act in the

third degree in each of the summers of 2009 and 2010. And count 13 charged

defendant with the commission of sexual abuse in the second degree during the

summer of 2006.

Victim 1 testified that the charged conduct occurred at least twice during each of the

specified time periods. He provided no further specifics about the frequency or timing of

any particular act, and the prosecutor did not seek to distinguish among them. The jury

was given no instructions that distinguished between the counts pertaining to any of the

time periods in a way that would have permitted it to relate each of the counts to a

specific act. Nor was it instructed “that it must arrive at a unanimous verdict with respect

to each alleged act, and that it may not use any single act of sexual [conduct] to support

a guilty verdict on more than one count.”

The Third Department found that the counts were duplicitous because it was impossible

to identify the particular act upon which any of these verdicts was based or “to verify

that each member of the jury convicted defendant for the same criminal act” as to each

count.

The Third Department’s decision can be found here.

Appellate Division, Fourth Department

On Friday December 21, in People v. Ellison, the Fourth Department vacated the

persistent felony offender adjudication and 20-year-to-life sentence imposed on

defendant in Monroe County, following his two shoplifting incidents and related

convictions. AD4 found, as a matter of discretion and in the interest of justice, that the

sentence was unwarranted and, in its place, substituted an aggregate sentence of 5-1/2

to 11 years.

Following a jury trial, defendant was convicted of two counts of burglary in the third

degree and one count of criminal possession of stolen property in the fourth degree.

The charges arose from two shoplifting incidents that occurred five days apart, one at a

Macy’s and a second at a Gap. All of the property from both thefts was recovered by the

police minutes after defendant left the stores. Although defendant had been offered the

opportunity prior to trial to plead guilty in return for a sentencing promise of concurrent

indeterminate terms of incarceration of 2 to 4 years, he rejected that offer and

proceeded to trial where he was convicted. Supreme Court adjudicated defendant a

persistent felony offender and sentenced him to 20 years to life on each count.

The Fourth Department found that, given defendant’s extensive criminal record,

Supreme Court did not act arbitrarily or irrationally in finding defendant to be a

persistent felony offender. Nevertheless, it vacated in the interest of justice. Although

defendant had a lengthy criminal history, almost all of which arose from him stealing

from stores to get money to support his long-standing drug habit. Defendant had never

inflicted violence on anyone, and he certainly did not physically harm anyone in this

case. More, the People never requested that defendant be adjudicated a persistent

felony offender; instead, the court sua sponte ordered the persistent felony offender

hearing.

The Fourth Department cited the disparity between the 2-to-4-year pretrial offer and the

ultimate 20-life sentence. In its words, “Such a disparity between the plea offer and the

ultimate sentence militates in favor of a sentence reduction, especially for a nonviolent

offender such as defendant.”

The Fourth Department’s decision can be found here.

Regards,

Edward V. Sapone

Sapone & Petrillo, LLP

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