Appellate court orders new trial for Massena man alleged to have forged check on dead man’s account

pCANTON — A state appellate court ruled Thursday that a Massena man convicted in 2013 of possessing a forged instrument and spent about 2½ years in state prison is entitled to a new trial./ppMichael K. Kocsis, 51, was convicted in St. Lawrence County Court in May 2013 of second-degree criminal possession of a forged instrument. He had been convicted at trial of forging and having a friend cash a $125 check drawn on the account of a dead man. /ppHe had been hired to do home renovations at a Massena residence and the homeowner allegedly discovered a check had been taken from a roll-top desk and cashed on her dead husband’s account, which had remained open after his death./ppMr. Kocsis was sentenced to 1 span class="fractions"1/3/span to 4 years in state prison and was imprisoned from May 14, 2013, until Nov. 23, 2015, when he was released under parole supervision, according to the state Department of Corrections and Community Supervision website./ppHe appealed the judgment on multiple fronts, most of which were rejected by the state Appellate Division, Third Department. However, in its ruling Thursday, the appellate court did determine that he was deprived of a fair trial based on the “guidance and instruction” provided to an unidentified assistant district attorney by now-retired Supreme Court Judge Kathleen M. Rogers. The court ruled while a judge needs to play a role in clarifying testimony and facilitating an orderly trial, the court’s power to raise matters in order to elicit significant facts or to clarify an issue “should be exercised sparingly.”/ppThe appellate court found that ADA at Mr. Kocsis’s trial “demonstrated difficulty” in laying the proper foundation for the admission into evidence of certain photographs and bank records, as well as in using a particular document to refresh a witness’s recollection. In response, Judge Rogers held various sidebars to explain points of law to the ADA. The appellate court found that Judge Rogers conceded in the record that, in an attempt to avoid portraying the defense counsel as “obstructionist,” she had “explained one too many, in all fairness.”/ppWhile the appellate court found that Judge Rogers’s assistant — “although well-intentioned” — arguably “created the perception that the People were receiving an unfair tactical advantage.” The court ruled that, based on this, the matter should be remitted to County Court for a new trial./ppIn other appellate decisions Thursday:/ppJoshua J. Love, 25, Massena, had a three-year prison sentence for a third-degree rape conviction overturned, with an order that the matter be returned to County Court for resentencing. He had pleaded guilty in September 2013 to allegations that he had sexual intercourse with a 16-year-old girl. Pursuant to his plea agreement, he was placed on one-year interim probation, with a promise of a sentence of probation if he successfully completed a substance abuse rehabilitation program./ppHowever, he was discharged from the program for allegedly fraternizing with a fellow female patient, despite having been directed not to be alone with female patients. Judge Jerome J. Richards denied Mr. Love’s attorney’s request for a hearing in which Mr. Love would be given a chance to dispute the fraternization allegation and found that, based on the discharge from the program, the plea agreement was no longing binding and a prison sentence was imposed./ppThe appellate court, citing case law, said that when a program discharges a defendant for misconduct, the lower court “must carry out an inquiry of sufficient depth to satisfy itself that there was a legitimate basis for the program’s decision” and then explain, on the record, the nature of the inquiry, its conclusions and the basis for them./ppMr. Love contended that his violation of the rules was inadvertent as the woman had followed him into a room he was cleaning. The appellate court noted that County Court made reference to a “discharge summary” in determining that no further inquiry was required, but said that its own review of the summary “discloses that it in no way addresses defendant’s assertion that the violation of program rules was inadvertent.” /ppBased on that, the appellate court ruled that it could not conclude that sufficient inquiry was made into the reasons for Mr. Love’s discharge. It vacated Mr. Love’s sentence and ordered the matter returned to County Court for further proceedings consistent with its findings on the adequacy of the inquiry into the discharge./ppSteven F. Rushlow Jr., 34, Massena, had a 2 1/3- to 7-year total prison sentence vacated and the matter was returned to County Court for resentencing. He had pleaded guilty in June 2013 to aggravated driving while intoxicated in satisfaction of a three-count indictment. At the time, the contemplated sentence was to be six months in jail and five years’ probation./ppWhile awaiting sentencing, however, Mr. Rushlow was again charged with DWI and was told that, if he pleaded guilty to the new crime, he would be sentenced to 1 1/3 to 4 years in prison consecutive to the one- to three-year prison term he would receive on the original conviction. Mr. Rushlow appealed, claiming he had never been advised of the potential consequences of his failure to comply with his supervised release conditions, or that his arrest prior to sentencing would subject him to an enhanced sentence. /ppThe appellate court, citing case law, determined that County Court did not advise Mr. Rushlow that an additional arrest could result in an enhanced sentence and should have given Mr. Rushlow an opportunity to withdraw his earlier plea once it became known that the court planned on imposing the enhanced sentence. The court returned the matter to County Court for the court to either impose the agreed-upon sentence or give Mr. Rushlow the option of withdrawing his initial guilty plea./ppChristopher A. Miller, 34, Gouverneur, had a condition of his sentence ordering him to sell off property in order to pay restitution vacated. Mr. Miller, a former mayor of Gouverneur, was convicted of fourth-degree grand larceny and sentenced to two to four years in prison. He had been convicted of swindling two Gouverneur residents out of more than $20,000 in a real estate scheme./ppAs part of his sentence, Judge Richards ordered him to sell his property in order to pay restitution. However, the appellate court found that forfeiture of property was not a condition of Mr. Miller’s plea agreement. Also, while prosecutors maintained that the court was entitled to a decree of forfeiture as part of the judgment of conviction, the higher court found that no order or judgment of forfeiture was issued by the lower court and that prosecutors had not complied with civil forfeiture procedures. The portion of Mr. Miller’s sentence ordering his property sold was vacated./p