Public Defense

New Appellate Practice Blog by The Abbatoy Law Firm, PLLC

Posted on July 26, 2011
Former Indignant Indigent blogger, David M. Abbatoy, Jr., Esq., has established The Abbatoy Law Firm, PLLC and concentrates his practice in New York appellate practice. The law firm's blog, The Update, can be found on the firm's website, www.abbatoy...

RocLaw

Posted on February 10, 2011
Just a quick note here to let the readers of I.I. know that I have started a new blog, RocLaw, with a focus on civil and criminal practice in Rochester, New York.  Now back to your regularly scheduled programming.     

News Coverage of Persistent Felony Offender Decision

Posted on April 01, 2010
The Second Circuit's decision yesterday in the persistent felony offender case is attracting much attention in the mainstream and legal media. Habeas Corpus Blog has a good roundup of the initial coverage.

Two Important Federal Decisions (PFO and IAC)

Posted on March 31, 2010
For a variety of reasons, its been a while since the Indignant Indigent has posted. However, the Indignant Indigent just couldn't let the day go by without updating readers on two important federal decisions that will dramatically impact New York State criminal practice...

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The Indignant Indigent Returns

Posted on September 16, 2009
After a restful summer, the Indignant Indigent returns. The Appellate Division, Fourth Department will release new decisions on October 2nd and 9th, and readers can expect new content and analysis that day and on the days in between. In the mean time, please read this excellent blog post by Donald Thompson of Easton, Thompson, Kasparek & Shiffrin in Rochester, New York...

False Confessions Discussed on the Oprah Winfrey Show

Posted on June 09, 2009
Yesterday, Oprah Winfrey did an entire one hour show on the subject of false confessions. An article describing one of the false confessions can be found here. The website contains other information and interviews relevant to the topic, including video of a police interrogation of the then-14 year old Michael Crowe, a boy falsely accused of stabbing his 12-year-old sister...

More Coverage of Judge's Approval of Taser Use to Procure DNA Sample

Posted on June 09, 2009
The Simple Justice Blog has a copy of Judge Sperrazza's decision in the DNA/Taser case. Plus, the Niagara Gazette has further coverage of the Niagara County Judge's ruling which permitted the police to use a taser to compel a defendant to give a DNA sample.

Supreme Court Decides that Due Process Requires Recusal in Muli-Million Dollar Campaign Donation Case

Posted on June 09, 2009
Back in March, the Indignant Indigent wrote about a case coming up before the Supreme Court in which the justices would be faced with the question of whether a judge who had received a multi-million dollar campaign contribution from a litigant should recuse himself from a case brought by that litigant/donor...

Failure to Move Against Search Warrant Not Ineffective Assistance of Counsel

Posted on June 05, 2009
In People v. Rockel Francis, the defendant was charged with the A-II felony Criminal Possession of a Controlled Substance in the Second Degree. The government's whole case, of course, was the drugs in Mr. Francis' possession. On appeal, the defendant argued that his trial attorney was ineffective for failing to challenge the search warrant permitting a search of his residence...

Speeding Driver Acted With Depraved Indifference

Posted on June 05, 2009
In People v. Michael Prindle, the defendant was driving his car at a high rate of speed (unspecified in the decision) on city streets and often drove in the opposing lane of traffic in an attempt to escape police pursuit. He was convicted of depraved indifference murder when his car struck another and killed an occupant...

Taser Use Approved to Procure DNA Sample

Posted on June 04, 2009
The Buffalo News reports that Niagara County Court Judge Sara Sheldon Sperrazza ruled this week that it is permissible for the police to use a taser (administering a 50,000 volt electric shock) to procure a DNA sample from a suspect. The court first ordered the defendant to provide an oral swab, which the defendant voluntarily agreed to do...

New York Times Coverage of Forensic Sciences

Posted on May 12, 2009
This week, The New York Times is running a series of articles regarding the ability of certain forensic sciences to make accurate conclusions. The Indignant Indigent has written in the past about two forensic sciences that are very important to criminal investigations, but often produce faulty or skewed results...

Court of Appeals Refuses to Vacate Sentence After Catu Violation

Posted on May 11, 2009
In People v. Paul Boyd, the defendant pleaded guilty and only afterward was informed that post-release supervision ["PRS"] was "mandatory". Mr. Boyd was not informed of the required length of the PRS. Later, at sentencing, the judge altogether forgot to impose PRS...

Sentence Vacated For Failure to Conduct Outley Hearing

Posted on May 11, 2009
In People v. Daniel Davis, the defendant pleaded guilty and was given the standard warning that if he was re-arrested before his return for sentencing, his sentencing promise of probation would disappear in favor of a possible one year term of incarceration...

Belton Effectively Overruled

Posted on May 02, 2009
Perhaps the most important criminal law decision issued so far this year, was that of the United States Supreme Court in Arizona v Gant, ? U.S. ?, 2009 WL 1045962, in which the Court effectively (although not admittedly) overturned its holding in New York v Belton, 453 U...

Plea Premised on Mututal Mistake Vacated

Posted on May 02, 2009
In People v Grey (2009 NY Slip Op 03570 [4th Dept 5/1/09]), the Appellate Division, Fourth Department reversed a convction because the plea was based on a mutual mistake. Specifically, the record establishes that Supreme Court erroneously assured defendant that he would retain the right to appeal with respect to the propriety of the court's refusal to dismiss the indictment based on the denial of defendant's right to testify before the grand jury pursuant to CPL 190...

Heads You Lose, Tails You Lose

Posted on May 02, 2009
In People v Buccina (2009 NY Slip Op 03568 [4th Dept 5/1/09])the Appellate Division, Forth Department rejected the contention of defendant that he was denied his right to testify before the grand jury where defendant refused to testify before the grand jury after he was informed that, pursuant to the policy of the jail where he was confined, he would not be allowed to change into street clothes before being transported to the grand jury...

Counsel Must Be Very Specific In Denying Police Allegations

Posted on May 02, 2009
Sometimes the lasting parts of a court decision come in the seemingly throwaway lend of the decision in which a court considers one final issue. That seems likely to to be the case with the decision of the the court of Appeals in People v Mattocks (_ NY3d _, 2009 NY Slip Op 03408[4/30/09) a decision which mostly addresses whether creasing a Metrocard to fool the card reader into allowing unpaid swipes constitutes forgery...

Single Instance of Ineffectiveness Results in Reversal

Posted on April 30, 2009
A single instance of ineffectiveness on the part of trial counsel will result in reversal in only a limited number of circumstances. Defining what type of single error should result in reversal is an issue that appears to be still unresolved. For example, in People v...

Rape in the First Degree Deemed Inclusory Concurrent Count

Posted on April 30, 2009
In People v. Henry Scott, the Fourth Department reversed a conviction for Rape in the First Degree on the grounds that it was an inclusory concurrent count of Predatory Sexual Assault Against a Child. The Court explained that: "the predatory sexual assault count charged rape in the first degree as one of its elements and, as charged in the indictment, the elements of the predatory sexual assault with respect to rape in the first degree are precisely those required for rape in the first degree under Penal Law § 130...

New Link Regarding Challenges to Firearm Examiner's Testimony

Posted on April 29, 2009
The Indignant Indigent has added two news link to the "Resources" toolbar at the right entitled "Challenging Firearms Examiners" (two parts). The links lead to two articles by Professor Adina Schwartz of the John Jay College of Criminal Justice that appeared last year in the New York State Defender's Association publication, The Champion...

Rare Reversal for Prosecutorial Misconduct

Posted on April 29, 2009
On April 24, 2009, the Fourth Department took the rare step of reversing a conviction on the grounds of partially unpreserved instances of prosecutorial misconduct. In People v. Kevin R. Morrice, "the prosecutor asked the witness if she was 'getting anything in return for [her] cooperation of telling the truth,' and she responded '[n]ot at all...

Conviction Reversed for Two Miranda Violations

Posted on March 27, 2009
In People v. Patrick Bungo, the defendant was arrested by his parole officer for having violated the terms of an order of protection issued in favor of his ex-wife. The police locked Mr. Bungo in the backseat of a police car with two other officers and inquired regarding his alleged contact with the ex-wife...

Judge's Promise of Harsher Sentence After Trial Coerced Plea

Posted on March 20, 2009
In People v. Gunther Flinn, the defendant pleaded guilty to attempted murder in the second degree. During his plea, the judge said that if Mr. Flinn was convicted after trial, he would a be treated "very differently as far as the sentence is concerned" if he exercised his right to a trial and that his sentence after trial would be "nothing like the sentence that [he] would get if [he] stood up and accepted [his] responsibility...

Not an Abuse of Discretion to Deny Request for Adjournment

Posted on March 20, 2009
In People v. James Comfort, the Fourth Department affirmed the defendant's conviction and rejected his claim that he was denied due process and his right to a fair trial following the trial court's repeated denial of requests for adjournments. The Fourth Department noted that: "The court granted defendant's "demand[]" for a new attorney approximately two weeks before trial was scheduled to commence, and defense counsel accepted the assignment with knowledge of the time constraints...

Insufficent Evidence of Filing a False Instrument

Posted on March 20, 2009
In People v. Alexis Oberlander, the Fourth Department determined that there was legally insufficient evidence of filing a false instrument in the first degree. The government's allegation was that Ms. Oberlander defrauded county welfare services by failing to note on her application for DSS that she shared her home with another adult...

New Link Regarding DOJ Standards for Eyewitness Identification Procedures

Posted on March 06, 2009
The Indignant Indigent has added a new link in the "Resources" tool bar to the right. The link is to the Department of Justice's 1999 guidebook for law enforcement on the use of pre-trial identification procedures. The 55 page publication proposes protocols for law enforcement when speaking to eyewitnesses...

A Discussion On Fundamental Fairness

Posted on March 04, 2009

Weight of the Evidence Win... Almost.

Posted on February 27, 2009

Third Department: Insufficient Evidence of Intent to Sell Heroin

Posted on February 26, 2009
In People v. McCoy, decided February 26th, the Third Department determined that there was insufficient evidence that the defendant possessed heroin with the intent to sell it. The court said: "the People presented no direct proof that defendant sold or attempted to sell heroin to any individual...

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