Monday, April 29, 2019
Friday, April 26, 2019
Tuesday, April 23, 2019
Sunday, April 21, 2019
Monday, April 15, 2019
New York Weekly Roundup Criminal Appeals 4 12 2019
The New York Weekly Roundup – Criminal Appeals is a blog and
video podcast by appellate and post-conviction attorney Patrick Michael Megaro summarizing
the latest developments in criminal law, criminal appeals, and post-conviction
relief in the State of New York. Each
week we digest the latest reversed convictions throughout the New York
Appellate Divisions and the New York Court of Appeals, as well as the United
States Court of Appeals and the United States Supreme Court.
This is a FREE service designed to give you the cutting edge
of developments in New York criminal law, appeals, and post-conviction relief.
Visit us at www.appealslawgroup.com
Follow on Facebook @NewYorkWeeklyRoundup
Subscribe to our YouTube Channel Appeals Law Group
Click HERE to listen to an audio version of our podcast
AUDIO:
COURT OF APPEALS
No reversals reported.
FIRST DEPARTMENT
No reversals reported.
SECOND DEPARTMENT
No reversals reported.
THIRD DEPARTMENT
People v. David
Secor, Docket # 525377
Risk Level 2 Sex Offender classification reversed, Defendant
reclassified as Level 1, abuse of discretion not to grant defendant a downward
departure where Defendant established by a preponderance of the evidence that
the “victim” of this Rape in the Third Degree statutory rape offense was a
willing participant and no force was used.
People v. Vernon
Montague, Docket # 108733
Defendant improperly sentence as a Second Felony Offender
pursuant to Penal Law § 70.06; original sentence of a conditional discharge in
2002 upon the his prior conviction for Criminal Sale of a Controlled Substance
in the Third Degree was the controlling date, not his subsequent resentencing
to state prison for violation of the conditional discharge. Prior sentence did not fall within 10-year
look-back period.
FOURTH DEPARTMENT
No decisions until April 26, 2019.
UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
United States of
America v. Juan Thompson, Docket # 18-74
Sentence of 60 months for cyberstalking, 18 U.S.C. § 2261A(2),
making hoax threats, 18 U.S.C. § 1038(a)(1) reversed. District Court improperly applied 2-level
sentence enhancement under United States Sentencing Guidelines §
2A6.2(b)(1)(A). Enhancement inapplicable
because Defendant was not served with an order of protection in accordance with
New York Family Court procedure, order was issued ex parte.
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WEEK-SPECIFIC
Risk Level 2 Sex Offender, SORA, downward departure, Rape in
the Third Degree, abuse of discretion, Second Felony Offender, Penal Law §
70.06; conditional discharge, Criminal Sale of a Controlled Substance in the
Third Degree, Federal Sentencing Guidelines, United States Sentencing
Guidelines, cyberstalking, 18 U.S.C. § 2261A(2), making hoax threats, 18 U.S.C.
§ 1038(a)(1), Family Court, order of protection
FOR YOUTUBE
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Florida Weekly Roundup - Criminal Appeals 4-12-2019
The Florida Weekly
Roundup is a video podcast summarizing the latest developments in criminal law,
criminal appeals, and post-conviction relief in the State of Florida. Each week we digest the latest reversed
convictions throughout the Florida District Courts of Appeal and the Florida
Supreme Court, as well as the United States Court of
Appeals and the United States Supreme Court.
This is a FREE service
designed to give you the cutting edge of developments in Florida criminal law.
Follow us on Facebook
at @FloridaWeeklyRoundup
Subscribe to our
YouTube Channel Appeals Law Group
FLORIDA SUPREME COURT
No criminal cases
reported.
FIRST DISTRICT COURT OF APPEAL
State v. Anthony Smith, Docket # 1D17-2911
State appeal of grant
of Rule 3.850 motion for post-conviction relief, post-conviction relief reversed,
conviction reinstated. Defense counsel
not ineffective for failing to ask Defendant where he was on the night of the
alleged robbery
Keita Jermaine Gaymon v. State, Docket # 1D17-3335
Sentence on violation
of probation reversed, trial court’s findings that Defendant could present a
danger to the public if subject to a non-prison sentence was unconstitutional
because it made factual findings beyond prior criminal history. The factual findings to enhance the sentence
were required to be made by a jury.
Sentence reversed
SECOND DISTRICT COURT OF APPEAL
No reversals reported.
THIRD DISTRICT COURT OF APPEAL
William Baker v. State, Docket # 3D17-1881
Opinion clarified, if
the State wants to charge a Defendant for separate offenses for use of a
Computer Service or Device to Solicit the Parent of a Child to Engage in
Unlawful Sexual Activity and Travelling to Meet a Minor for Unlawful Sexual
Activity, the charging document must be clear on its face that the solicitation
for one offense is separate and distinct from the conduct constituting
solicitation on the other offense to avoid Double Jeopardy problems.
State v. Armando Socarras, Docket # 3D18-0783
State appeal of order
suppressing three post-Miranda statements, reversed in part to deny suppression
of two of the three statements.
Defendant, a police officer charged with corruption, did not reasonably
believe that he was compelled to give all three statements under threat of job
loss, and therefore, the statements were not improperly coerced.
FOURTH DISTRICT COURT OF APPEAL
No reversals reported.
FIFTH DISTRICT COURT OF APPEAL
Jesse Graham
Berben v. State, Docket # 5D17-1428
Conviction for 20 counts of Possession of Child Pornography
affirmed, but sentence of 100 years violated Eighth Amendment where trial court
improperly considered uncharged crimes of distributing child pornography, and
equated that conduct with actual physical and sexual abuse of a minor.
Dissenting opinion pointed out that the issue was not preserved
by timely objection nor was it briefed.
State v. Kurt
Andrew Grammig, Docket # 5D17-3416
State appeal of order dismissing Sexual Battery, Aiding and
Abetting Sexual Battery, and Kidnapping on statute of limitations grounds. 26-year delay in prosecution was not
unreasonable where statement made diligent attempts to locate the Defendant,
and Defendant fled the state and used multiple aliases.
State v. Richard
C. Schuler, Docket # 5D18-3086
The State of Florida timely appeals the trial court’s
imposition of a downward departure “time served” jail sentence following the
defendant’s open plea. Because the sole basis for which the defendant sought a
downward departure sentence is not supported by competent substantial evidence,
reversed and remanded for further proceedings.
Charles E. Smith
v. State, Docket # 5D18-3528
Summary denial of motion for jail credit pursuant to Rule
3.801 without opportunity to file a sufficient, amended motion reversed.
Arthur M. Rish v.
State, Docket # 5D18-3657
Summary denial of Rule 3.850 motion for post-conviction
relief based on ineffective assistance of counsel reversed and remanded to
afford Defendant the opportunity to refile a sufficient motion.
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