Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 7, #5

Issue: The Discretion of a Judge in Making Rulings

In applying the law, a judge often is not confined to a binary yes/no decision, but rather has a range of alternatives to consider. Additionally, a judge often has discretion in whether to apply a legal principle to a given situation.

In various contexts, where it is clear that a judge has alternatives but is unaware of those alternatives, error – perhaps reversible error – results.


This issue has arisen in various contexts at sentencing. A judge in accepting a guilty plea is not bound and retains the discretion in what sentence to impose. People v Farrar, 52 NY2d 302 (1981).

Where the record shows that the judge was unaware of other available alternatives in sentencing the defendant, the sentence may be set aside. For example, felony DWI: the sentence for this crime often includes a fine, but this is not mandatory: the statute provides that the punishment may be a fine, imprisonment, or both. Veh & Traf L §1193(1). The sentencing court’s mistaken belief as to its authority may require resentencing. People v Fehr, 303 AD2d 1039 (4th Dept 2003); see also, People v Schafer, 19 AD3d 1133 (4th Dept 2005).


In a case involving the rape-shield law, the trial court ruled that questioning the complainant about numerous false rape allegations against others was inadmissible. Such testimony is admissible, in the court’s discretion. People v Becraft, 198 AD2d 868 (4th Dept 1993).

Jury selection

In other situations, the judge’s failure to perceive the discretion to apply alternatives may result in reversal. This arose in the area of jury selection in People v Luciano, __ NY3d __, 2008 WL 2241258. Defense counsel peremptorily challenged prospective jurors, which the trial judge found to be racially discriminatory under Batson v Kentucky, 476 US 79 (1986). The issue then arose as to the proper remedy: does a party lose its limited number of peremptory challenges as a result? The trial judge held that the challenges were forfeited – the judge had no discretion to exercise. The Court of Appeals ordered a new trial: forfeiture might be appropriate, but in deciding what remedy to apply, the trial judge misapprehended its authority and failed to exercise the requisite discretion.

SORA classification

In the area of sex offender registration, it is the judge, not the Board of Examiners of Sex Offenders, who decides what “risk level” to impose. NYS Board of Examiners v Ransom, 249 AD3d 891 (4th Dept 1998). Where the trial court failed to review all of the evidence but instead indicated that the highest risk level was mandatory, the failure to exercise its authority was error. People v Freeman, 43 AD3d 1246, 842 NYS2d 609 (3d Dept 2007).

Where a decision is in the trial court’s discretion, and reversible for abuse of discretion, see, e.g., People v LeGrand, 8 NY3d 449 (2007) (expert witness), the failure to perceive that discretion may be error. People v Coe, 95 AD2d 685, 463 NYS2d 795 (1st Dept 1983) (Sandoval ruling).

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