Thursday, December 20, 2012

A Lesson from the Appellate Division, Second Department

....Never make an argument on appeal contrary to your client's position below.  Yet, this is exactly what the prosecution did in People v. Gutierrez-Lucero.    In this case, the defendant, who pleaded guilty to a sex offense, had been deported to Mexico before the commencement of a hearing to determine his sex offender classification level.  Both defense counsel and the People agreed that the hearing could not proceed in the defendant's absence, especially since there was no indication the defendant had even been notified of the hearing.  But, the court held the hearing anyway and adjudicated him a Level I sex offender.  

Rather than concede error on appeal, the People insisted that the Court affirm the ruling of the court below, claiming that no prejudice inured to the defendant since the hearing court levied the least restrictive classification possible.  

Big mistake.  In a signed opinion, the Court called the People's position "disingenuous."  Let the Court's terse opinion be a lesson to any appellate advocate who's even contemplating the idea of taking a position inimical to your client's contentions below.      

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