One May Not Waive the Presentence Report Prior to the Impositon of a Sentence of Imprisonment

In People v Shapard (2009 NY Slip Op 00903 [4th Dept 2/6/09]) the Court held that a defendant may not waive his right to a presentence report prior to the imposition of a sentence of imprisonment.

We agree with defendant that his waiver of the presentence report should not have been given effect pursuant to CPL 390.20 (4) (a). Such a waiver is not authorized where, as here, "an indeterminate or determinate sentence of imprisonment is to be imposed" (id.). Defendant pleaded guilty to a class D felony and agreed that he was properly classified as a persistent violent felony offender. Supreme Court therefore was required to impose a term of imprisonment upon that conviction (Penal Law § 70.08 [3] [c]; § 120.05 [7]), and thus was also required to order a presentence report prior to imposing the bargained-for sentence (see generally People v Selikoff, 35 NY2d 227, 238, cert denied 419 US 1122; Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 390.20). We therefore modify the judgment by vacating the sentence, and we remit the matter to Supreme Court for resentencing in compliance with CPL 390.20 (1).

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.

When Did the Fourth Department Last Expressly Acknowledge Its Authority to Reduce Negotiated Sentences?

In People v Farrow, __AD3d , 2009 NY Slip Op 00737 [4th Dept 2/6/09], the Fourth Department’s decision raises questions as to how it envisions the scope of its powers to modify a negotiated sentence.

After holding that the defendant’s one sentence written waiver of appeal was invalid and that in any event that a valid waiver of the right to appeal would not encompass defendant's challenge to the severity of the sentence in this case inasmuch as the court failed to ]advise defendant of the sentencing possibilities , the Court held that “Nevertheless, we reject defendant's challenge to the severity of the sentence. "Defendant was sentenced in accordance with the plea bargain and should be bound by its terms" (People v McGovern, 265 AD2d 881, lv denied 94 NY2d 882). “

This decision makes no mention of the court decisions, including that of the Court of Appeals, which make clear that the broad, plenary power of the Appellate Division, includes the power to reduce a sentence even if the sentence imposed pursuant to a negotiated plea bargain. People v Delgado, 80 NY2d 780,783 (1992); People v Thompson, 91 AD2d 672 (2nd Dept. 1982), modified 60 NY2d 513 (1983); People v Suitte, 90 AD2d 80 (2nd Dept. 1982).

Perhaps one might think that these decisions were discussed and distinguished in McGovern, the decision quoted in Farrow. But McGovern, an earlier Fourth Department decision never cited nor distinguished these cases. Rather it merely quotes People v Zelke (203 AD2d 909), an earlier Fourth Department decision, which merely quoted People v Felman (141 AD2d 889) a decision of the Third Department which pre-dated the Court of Appeal decision in Delgado.

The Fourth Department last cited Delgado as a basis for reducing a negotiated sentence in 1996 in People v Sanchez (225 AD2d 1085 [4th Dept 1996]), in which the Court reduced a negotiated sentence from 8 1/3 year to life to 3 years to life. Since then the Court has never cited nor discussed Delgado in deciding whether it could or should reduce a negotiated sentence. This failure to expressly acknowledge the scope of its authoity to reduce negotiated sentences creates a questions as to whether the language of Farrow that defendant should be bound by the terms of his plea bargain represents an application of the Court’s discretion, as set forth in Delgado, or of a rejection of the very option of challenging a negotiated sentence on appeal?

Fraud in the Procurement, Part 2

The Appellate Division, 4th Department has issued a decision today that is relevant to my post last week regarding the defense of fraudulent procurement.

At the end of that post, I noted that "procurement is fraudulent where there are material misrepresentations and, had the carrier had known the truth, the policy would not have otherwise been issued." I failed to give a citation for this proposition, but the 4th Department has given me a fresh case to cite to.

In Rafi v Rutgers Cas. Ins. Co., the Court holds that "in order to prevail on its affirmative defense, defendant was required to submit proof concerning its underwriting practices with respect to applicants with similar circumstances in order to meet its burden of establishing that it would not have issued the same policy had the correct information been included in the application." 2009 NYSlipOp 00905 (4th Dep't, 2009) (internal quotation marks omitted).

Do note, though, that Rafi does not appear to concern an automobile insurance policy. As such, the reference in that decision to the policy being "void ab initio" due to material misrepresentation is inapplicable to no-fault (and other automobile insurance) litigation. That said, the definition provided in Rafi of what qualifies as a material misrepresentation made in the procurement of the policy should still apply to auto policies.

Where the misrepresentation concerns the insured's state of residence, as is typical allegation in no-fault litigation, this is presumably a simple burden for the carrier to meet. That is, where the insured lives in Queens, but procures an automobile insurance policy with the carrier by falsely stating that she lives in Pennsylvania, the carrier should easily be able to produce an affidavit from underwriting stating that the carrier would never have issued a Pennsylvania policy (which has its own set of specific provisions that comply with PA law) to a New York resident. Instead, the affidavit would presumably allege, had the carrier known the truth, the carrier would have either issued a different policy (that complied with New York law) or no policy at all.

Verification

The Appellate Term's decision in A.B. Med. Servs., PLLC v. Country-Wide Ins. Co., 2008 NYSlipOp 52651(U) (App. Term, 2d Dep't, 2008) was posted today.

The decision is kind of messy, covering various issues briefly, but there's one interesting point. The Appellate Term found the following: "Since the affidavit of defendant's no-fault litigation supervisor lacks specificity to support the assertion that defendant did not receive the verification it requested, it was insufficient to establish that the verification was still outstanding and, thus, that defendant's time to pay or deny the claims was tolled."

I'm not sure what this means, and I can't find this language in prior no-fault decisions. What level of specificity is now required in a claim rep's affidavit to establish that requested verification was not received? Is it not enough for the rep to simply state that the verification was never received?

In any event, it appears that the Appellate Term has opened up a new avenue of attack on insurers' affidavits.

Change We Can Believe In?

Look what Sallie Mae quietly slipped into the stimulus bill:

"One provision, which was sought by the student lending industry and went unmentioned in early Congressional summaries of the stimulus package, would temporarily increase subsidies to banks in the guaranteed student loan program by tying them to a new index, partly because recent federal intervention in the credit markets has invalidated the previous index. A spokesman for Sallie Mae, one of the largest student lenders, said the change was needed to keep student loan markets fluid. Critics said it represented a potential new windfall for lenders.

“This just continues the well-established tradition of welfare for the student loan industry,” said Barmak Nassirian, an expert in student lending."

http://www.nytimes.com/2009/01/28/education/28educ.html?hp

Race To The Bottom

"James Jones, managing director of Hildebrandt International, also talked about the need to change associate compensation in a talk he gave last week. He predicted that the law firm business model will change to include a shift to more contract and temp lawyers and fewer full-time partners and associates."

http://www.abajournal.com/news/how_some_big_law_firms_erred_in_the_boom_years/

Looks like this blog won't become an anachronism after all. While they outsource our jobs to India and push us out of the profession, they are also planning on transforming the future ranks of full time associates into temps.