Public Defense

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...

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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...

Court of Appeals Upholds Persistent Felony Offender Statute... Again

Posted on February 25, 2009
On February 24, in People v. Quinones, the Court of Appeals reaffirmed its previous holdings that the state's discretionary persistent felony offender [PFO] statute does not violate Apprendi v. New Jersey (530 US 466 [2000]). In Apprendi, the court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt" (Apprendi, 530 US at 490)...

Mandatory Surcharge Not Part of a Defendant's "Sentence"

Posted on February 25, 2009
In People v. Guerrero, the defendant was sentenced without the judge ever having mentioned that he was required to pay the mandatory surcharges and fees that typically accompany a criminal conviction in New York State. At the Court of Appeals, he challenged whether the Court of Appeals' prior decision in People v...

New Link Regarding Police Interrogation Practices

Posted on February 23, 2009
Please note that the Indignant Indigent has posted a new link in the "Resources" tool bar to the right. The new link is to the homepage of John E. Reid & Associates. John Reid is perhaps better known as the author of Criminal Interrogations and Confessions, the publication that serves as The Bible for police interrogations...

State Supreme Court Justice Resigns

Posted on February 23, 2009
A Supreme Court Justice in Buffalo resigned this past weekend for his involvement in a scheme to cover up a local attorney's DWI. The Buffalo News reported the judge's resignation together with the details of the attorney's and her doctor's attempts to cover up the DWI.

COA: Evidence Suppressed After Police Exceed Scope of Investigatory Detention

Posted on February 17, 2009
In People v. Ricky Ryan, the police learned that there had been an early-morning carjacking, and based upon the descriptions and circumstances, suspected Mr. Ryan. Five hours after the carjacking, the police approached Mr. Ryan, asked him to be seated in the backseat of a police car, photographed him, and held him while the victim of the car-jacking viewed the photo...

Fourth Deparment Splits on Whether Child-Victim's Testimony Was Corroborated

Posted on February 17, 2009
The defendant in People v. Shannon Kolupa appealed from his conviction for criminal sexual act in the first degree (Penal Law § 130.50 [3]) and attempted rape in the first degree(Penal Law 10.00, 130.35 [3]) on the grounds that the seven-year-old victim's testimony was not sufficiently corroborated...

Reasonable View of Evidence That Defendant Took Title Under Claim of Right

Posted on February 17, 2009
In People v. Michael Baroody, the Fourth Department ruled that there was a reasonable view of the evidence that the defendant in this petit larceny prosecution took possession of the allegedly stolen items under a "claim of right". The facts supporting the charge were as follows: "Defendant testified at trial that the owner of the auto shop had informed defendant that those tires had been "laying around [and] were not wanted...

Second Department Dismisses Charges on 30.30 Grounds

Posted on February 17, 2009
In People v. Stephen Price, the Second Department dismissed an indictment for the class E felony of attempted disseminating indecent material to a minor in the first degree (see Penal Law §§ 235.22, 110.05[6]). The government commenced prosecution in February of 2006...

Be Careful What You Ask For...

Posted on February 12, 2009
United States v. Beltran, out of the Ninth Circuit, serves as an important cautionary tale for appellate practitioners. The defendant(s) were lucky enough to have received sentences five years less than the statutory minimum, only to have their appellate attorneys argue that the sentences were excessive...

Reversal for Un-Mirandized Questioning

Posted on February 12, 2009
In People v. Phillip Flowers, the defendant was arrested for Criminal Possession of a Controlled Substance in the Third Degree (subdivision 12) while the police were executing a search warrant upon his home. Without any Miranda warnings, the arresting officer asked the defendant how much money cash he had in his pockets...

Defendant Failed to Demonstrate He Was Prejudiced by Poor Translation at Trial

Posted on February 12, 2009
In People v. Singleton, the defendant was charged with robbery and burglary in the first degree. The victim only spoke an East Indian dialect called Gujarati. The interpreters used for Mr. Singleton's trial were not able to properly translate the testimony into English...

Murder Charge Dismissed on Speedy Trial Grounds

Posted on February 12, 2009
On February 11, 2009, the Court of Appeals decided People v. Anthony Romeo. In 1985, Mr. Romeo was linked via DNA evidence to a murder in Suffolk County. He was scheduled to turn himself in to police, but instead fled to Canada where he killed a Canadian constable...

Court Must Explain Waiver of Right to Appeal

Posted on February 09, 2009
In People v. Farrow, the Fourth Department reaffirmed that a defendant cannot waive his right to have a waiver of the right to appeal explained on the record. Moreover, the court re-stated its position that the judge accepting the plea and waiver has an independent duty to ensure that the defendant understands the waiver...

Rap Music and Consciousness of Guilt

Posted on February 09, 2009
In People v. Wallace, the defendant was convicted of murder in the second degree. At issue was whether the government could appropriately enter into evidence testimony that the defendant listened to the rap song "How I Could Just Kill a Man" (by Rage Against the Machine -- his favorite song) two or three times shortly after the murder occurred...

Further Definition of Appropriate Notice Pursuant to People v. Sedlock

Posted on February 09, 2009
In an on-going effort to further define what constitutes a sufficiently narrow time-frame in an indictment for sex offenses (or other course-of-conduct crimes), the Fourth Department decided People v. Rodney Adams. In Adams, the court held that a two or three month time-frame was permissible by stating: "the time frames set forth in the indictment, i...

Does Consumption of Alcohol Before Driving Constitute Depravity?

Posted on January 30, 2009
On January 29, 2009, the First Department decided People v. Valenica, a case with potentially great impact upon whether prosecutors can validly charge defendants with depraved indifference assaults (or homicides) when the defendant injures or kills another motorist while intoxicated...

New Indignant Indigent Blogger

Posted on January 29, 2009
The Indignant Indigent blog is back online. Beginning immediately, Assistant Monroe County Public Defender David Abbatoy will take over blogging duties for this website. Mr. Abbatoy works in the Public Defender's Appeals Bureau and has briefed approximately 100 appellate cases, including cases before the Fourth Department and Court of Appeals...

New Address for this Blog

Posted on September 28, 2008
Effective October 1, 2008, future postings for this blog will be at a new address:http://newyorkcriminaldefense.blogspot.com/

What does CPL 190.50 mean when it requires that the DA accord a defendant a reasonable time to testify at the Grand Jury?

Posted on September 16, 2008
CPL 190.50(5)(a) requires that upon a request from a defendant to appearbefore the grand jury, the district attorney must notify the defendant orhis attorney of the prospective or pending grand jury proceeding and must "accord the defendant a reasonable time to exercise his right to appear as awitness therein...

Error to Permit Defendant to Be Cross-Examined Regarding Prior YO Adjudication

Posted on July 05, 2008
In People v Towsley, 2008 NY Slip Op 06054 [4th Dept 7/3/08] [here], the Fourth Department held that it was an abuse of discretion for the trial court to issue a Sandoval ruling permitting the defendant to be cross examined regarding a prior Youthful Offender adjudication...

Reversal Due to Unpreserved Prosecutorial Misconduct

Posted on July 05, 2008
In People v Fredrick, 2008 NY Slip Op 06056 [4th Dept 7/3/08] [here] the Fourth Department not only reversed a conviction due to unobjected to prosecutorial misconduct, but in doing so the Court expressly refused to consider whether the misconduct contributed to the verdict...

Horseshoes, Hand Grenades, and Predicate Sentencing:

Posted on July 05, 2008
Besides the classic examples of horseshoes and hand grenades, compliance with the requirements for predicate sentencing is apparently another instance in which getting close is credited. In People v Mateo, 2008 NY Slip Op 06087 [4th Dept 7/3/08](here] the Fourth Department considered the consequence of the failure of the People to file a second felony offender statement as required by CPL 400...

When Does a "Comvction" Occur?

Posted on June 25, 2008
by James EckertMany statutes impose harsher penalties on a defendant who commits a crimeafter he has been "convicted" of another crime. For example, a UUMVconviction after a prior is more serious, the second DWI is a felony and soon. Today, in People v Montilla, the Court of Appeals held that adefendant is convicted, at least for some purposes, the day he pleadsguilty...

Court Divided As To What Consititutes Individualized Showing Needed To Require Defendant To Wear Physical Restraints At Trial

Posted on June 15, 2008
In People v Buchanan [4th Dept 6/6/08] (here) the Fourth Department unanimously held that the use of a stun belt that is not visible to the jury is subject to the same judicial scrutiny as other forms of physical restraint that are visible. Spefically, the Court held that the use of a stun belt that is not visible to the jury requires the court to make the same individualized security determination required for the use of physical restraints that are visible (see Deck v Missouri, 544 US 622, 632)...

Reversal for Brady Violation Absent Specific Request for Information

Posted on June 12, 2008
In People v Hunter (6/12/08) a unanimous Court of Appeals held that in a sex case, where the defense was consent, it was a Brady violation requiring reversal for the prosecutor to withhold from the defense information that in another pending case the same complainant has accused a man of rape and his claim was that the sex had been consensual...

Cumulative Effect of Evidentiary Errors and Prosecutorial Misconduct Deprived Defendant of Fair Trial

Posted on June 08, 2008
What is rarer, reversal due the admission of hearsay or reversal due to prosecutorial misconduct? How about reversal for unpreserved hearsay violations? Or reversal for unpreserved prosecutorial misconduct? In People v Ballerstein 2008 NY Slip Op 05127 [4th Dept 6/6/08], a decision sure to be cited often, the Fourth Department held that, despite not being preserved for review, the cumulative effect of evidentiary errors and prosecutorial misconduct deprived the defendant of his right to a fair trial and required reversal...

Forfeiting Peremptory Challenges Used in a Discriminatory Manner is a Permissible Remedy for Batson Violations

Posted on June 08, 2008
The Court of Appeals, in People v Luciano, 2008 NY Slip Op 04898 [6/3/08] has held that forfeiture or permeptory challenges is a permissible remedy for attorneys who exercise peremtory challenges in violation of the constitiuion under Batson v Kentucky, 476 US 79 [1986] and its progeny...

Taking Keys to Car is a Seizure Even if Car Isn't Searched

Posted on June 08, 2008
In People v Colligan, 2008 NY Slip Op 05133 [4th Dept 6/6/2008] the Court held that it was error to deny a suppression motion where, prior to the issuance of a warrant to search a car, the police took the keys to the car from the defendant and sat out with the automobile...

Murder Conviction Reversed Because of Discovery Violations

Posted on June 08, 2008
In People v Davis , 2008 NY Slip Op 05131 the Fourth Department reversed a murder conviction because it found that the prosecutor's repeated discovery violations and the court's denial of a brief adjournment to allow the defendant to review the materials when eventually provide prejudiced the defendant...

New York State Ignores All Four Appellate Divisions

Posted on June 08, 2008
I previously reported that the Appellate Division, Fourt Department, in People of State of New York ex rel. Lucas Foote v Piscotti, held that persons charged with violating the terms of post release supervision not imposed by judges are entitled to immediate release...

Our Government is Incarcerating Many People Without Any Lawful Authority

Posted on June 01, 2008
The Executive branch of our government is knowingly incarcerating many people whom it knows it has no legal authoriy to incarcerate. It appears to be our government's policy that, although it is unlawful to incarcerate these individuals, the government will continue to keep them in custody unless and until each affected individual wins a habeas corpus proceeding resulting in a court order for his release...

One Cannot Be Incarcerated For Violating The Terms Of Post Release Supervision Not Imposed By A Judge

Posted on May 23, 2008
After the Court of Appeals held that post relase supervisions sentences added by the Department of Corrections or by court personnel, other than judges are not validly imposed, but that resentencing was available in such cases for a court to lawflly impose such a sentnece (People v Sparber)the questioned remained whether persons charged with violating the terms of post release supervision not imposed by judges are entiled to immedite release...

Recent Third Department Reversals, Modifications and Dissents

Posted on May 21, 2008
by Tim Davis, Esq.People v Hackett, 47 AD3d 1122 (January 24, 2008)Late one night, a State Trooper observed the defendant drive his vehicle over the fog line. The Trooper activated his emergency lights. After pulling over to the side of the road, the defendant leaned toward the passenger seat of his vehicle before the Trooper approached...

Post Release Supervision: What is the Remedy When Not Imposed By a Judge?

Posted on May 04, 2008
In People v Sparber, 2008 NY Slip Op 03946 [NY 4/29/2008], the Court of Appeals finally considered the remedy when sentencing courts fail to pronounce their Post Release Supervision [PRS] terms in accordance with Criminal Procedure Law sections 380.20 and 380...

Evidence of ABSENCE of Sexual Activity Barred by CPL 60.42

Posted on May 03, 2008
The Court in People v Bones, 2008 NY Slip Op 03788 [4th Dept 4/25/2008] held thatThe court properly determined that CPL 60.42, which concerns the admissibility of evidence of a victim's past sexual activity, also concerns the admissibility of evidence of the absence of sexual activity on the part of the victim (see generally People v Williams, 81 NY2d 303, 311; People v Nemie, 87 Cal App 3d 926, 929)...

Can Contrary Verdicts For Co-Defendants Be Repugnant?

Posted on May 03, 2008
Although the answer to the question posed by the caption is "yes," the Court in People v McLaurin, [4th Dept 4/25/2008]rejected a claim that that a verdict convicting a father of resisting arrest was repugnant to the jury's acquittal of the son on that charge, where they had the same defense - that the son was not present...

IAC Claims Need to be Preserved

Posted on May 03, 2008
The Court in People v Hall, 2008 NY Slip Op 03738 [4th Dept 4/25/2008], in rejecting a claim of ineffective assistance of counsel, held thatTo the extent that the contention of defendant that he was denied effective assistance of counsel survives his plea of guilty (see People v Burke, 256 AD2d 1244, lv denied 93 NY2d 851), we note that defendant failed to preserve that contention for our review (see People v Tantao, 41 AD3d 1274; People v Fulford, 296 AD2d 661, 662).

Attenuation: White, Paulman and Chapple

Posted on May 03, 2008
In People v Parker, 2008 NY Slip Op 03906 [4th Dept 4/25/2008] the Court found that despite a a period of custodial interrogation without Miranda warnings, during which the defendant repeatedly made admissions, the post-Miranda statement was attenuatedThe record establishes that, shortly after defendant was taken into police custody, he was questioned by a police officer and made admissions in response to those questions...

Court Cites Decision in Douglas Warney's Appeal In Affirming Conviction Despite Challenges to Confession and Claims of Misconduct

Posted on May 03, 2008
In rejecting the Defendant's contention that he was deprived of a fair trial based on alleged misconduct by the prosecutor in cross-examining defendant's witnesses, the Court, in People v Alexander, 2008 NY Slip Op 04163 [4th Dept 5/2/2008] held that Defendant's contention with respect to three of the allegedly improper questions is not preserved for our review inasmuch as defendant made only general objections to those questions (see generally People v Pierre, 300 AD2d 1070, lv denied 99 NY2d 631), and we decline to exercise our power to review defendant's contention concerning those three questions as a matter of discretion in the interest of justice (see CPL 470...

"I Did This Before" Admissible as Res Gestae

Posted on May 03, 2008
In a prosecution for murder in the fist degree based on a murder committed during a rape (Penal Law § 125.27 [1] [a] [vii]), as well as two counts of rape in the first degree (§ 130.35 [1]), the Court in People v Owens [4th Dep 5/2/08], held that defendant'scontention that the court erred in permitting the victim who [*2]was the subject of the two rape counts to testify that during the course of the rape defendant stated, "I did this before...

When Can Multiple Acts Be Grouped Together in an Intentional or Depraved Assault Count?

Posted on May 03, 2008
Five months after oral argument, in People v Bauman [2008 NY Slip Op 04182](4th Dept 5/2/08] a divided Fourth Department issued a decision addressing the propriety of grouping multiple acts over an extend period of time in a single count charging intentional or depraved indifference assault...

Defendant Needs to Object to Conflict of Interest

Posted on May 03, 2008
In People v Peterson, 2008 NY Slip Op 03822 [4th Dept 4/25/2008], the Court held that where a defendant contendsed that County Court failed to engage in a sufficient Gomberg inquiry when the court learned that defendant and a codefendant were represented by the same attorney (see People v Gomberg, 38 NY2d 307, 313-314) the "Defendant failed to preserve that contention for our review (see People v Woods, 6 AD3d 1126, 1127, lv denied 3 NY3d 683...

Weapons and Assault Sentences to Run Concurrently

Posted on May 03, 2008
In People v Torres, 2008 NY Slip Op 03888 [4th Dept 4/25/2008], the Court agreedwith defendant...that County Court erred in directing that the sentence imposed on the count of criminal possession of a weapon shall run consecutively to the sentence imposed on each count of attempted assault and attempted aggravated assault...

Robbery Conviction Reversed As Against Weight of Evidence

Posted on May 03, 2008
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Attack a Plea at Your Peril

Posted on May 03, 2008
In another reminder to counsel of the need to to be cautious in attacking a guilty plea, the Court, in People v Hinckley, 2008 NY Slip Op 03737 [4th Dept 4/25/08], in vacating one of two counts of a plea to CSCS in the third degree on finding that the defendant's "plea with respect to that count falls within the narrow exception to the preservation requirement (see Lopez, 71 NY2d at 666)" held that In as much as defendant's plea was entered upon a negotiated agreement, we note that, in the event that defendant does not enter a plea of guilty to criminal possession of a controlled substance in the third degree upon remittal, the court "should entertain a motion by the People, should the People be so disposed, to vacate the plea and set aside the conviction in its entirety" (People v Irwin, 166 AD2d 924, 925; cf...

Claim of Right Defense Should Have Been Charged

Posted on May 03, 2008
In People v Ace, [4th Dpt 5/2/08], the Court reversed a larceny conviction in the interest of justice, holding that County Court erred in failing to charge the jury that his claim of right was a defense to the count of grand larceny, whereDefendant testified at trial that he was instructed by one of the co-owners of the company that employed him to take the allegedly stolen rails to the scrap yard, and that testimony was corroborated in part by one of defendant's coworkers...

Selected Criminal and Family Law Decisions From the First Department

Posted on April 30, 2008
By Janet Somes:From January & February, 2008CRIMINAL LAWPeople v Stephens, 47 AD3d 586 (decided Jan. 31, 2008) Lower court order of suppression of evidence reversed (ouch). Defendant was taking a walk in area where there had been some robberies. One hand was swinging while his other hand was still, near his waistband...

Some Recent Decisions From the Second Department

Posted on April 27, 2008
From Jim Eckert:People v Russell , 47 AD3d 732 - Defendant, charged with CPW3, claimed temporary lawful possession. The court ruled that the trial court failed to make clear in the jury instructions that the People had to disprove this claim beyond a reasonable doubt, especially in light of the trial court?s failure to adequately marshal the evidence...

AD 4th Dept: Selected Decisions of March 21, 2008

Posted on April 07, 2008
Reckless, But Not DepravedIn People v Bolling 2008 NY Slip Op 02654 (4th Dept 3/21/08), the FourthDepartment, once again, has reduced a depraved murder conviction to that ofreckless manslaughter. In this case, the Court held that the fatal shot tothe decedent?s thigh "does not warrant a finding that defendant's conduct demonstrated the utter disregard for the value of human life' necessary to support the convictionof depraved indifference murder (People v Suarez, 6 NY3d 202, 214)...

Insufficient Inquiry for a Valid Waiver of Appeal

Posted on March 23, 2008
People v Vega 2008 NY Slip Op 02250 (3/14/2008)The Fourth Department holds that a single inquiry to a defendant which fails to make clear that the loss of the right to appeal is not an automatic consequence of a guilty plea is insufficient to demonstrate a knowing and intelligent waiver of appeal: we agree with defendant that his waiver of the right to appeal is invalid (see generally People v Lopez, 6 NY3d 248, 256)...

Unreasonable to Respond to Attack

Posted on March 20, 2008
People v Mcclellan 2008 NY Slip Op 02271 (3/14/2008)In holding that the proof was sufficient for a jury to find justification disproved, the Court held that even if a 17 year old African-American, who was walking with four African-Americans companions in a predominately Caucasian neighborhood, when five Caucasian men yelled racial epithets and initiated a physical confrontation, actually believed that deadly physical force was necessary," it nevertheless supports a finding that defendant's belief was not reasonable under the circumstances (People v Wesley, 76 NY2d 555, 559; see People v Butera, 23 AD3d 1066, 1068, lv denied 6 NY3d 774, 832).

A Reminder of the Risks in Appeals from Guilty Pleas

Posted on March 15, 2008
Two recent decisions from the Fourth Department remind us of the potential dangers in appeals form guilty pleas.People v Hamilton 2008 NY Slip Op 02234 (4th Dept 3/14/2008)The Fourth Department considered an unpreserved claim regarding an improperly imposed predicate sentence...

Useful Molineux Holding

Posted on March 15, 2008
People v Pittman 2008 NY Slip Op 02236 (3/14/2008)In a case involving an attempted murder of a police officer, a divided Court issued an excellent Molineux holding. First the Court held that evidence of a prior possession of a weapon was not ??sufficiently unique to be probative on the issue of identity? (People v Beam, 57 NY2d 241, 252)...

Requirements and Limits on Ordering of Restitution

Posted on March 15, 2008
Two helpful decisions on restitition. People v Maliszewski 2008 NY Slip Op 0223 (3/14/2008) is one decision with two good holdings regarding the imposition of restitution.First, the Court held thatWe agree with defendant that the court erred in enhancing his sentence of incarceration based upon his failure to pay restitution arising from previous convictions...

Faiure to Raise Dispositive Statute of Limitations Defense Will Not Always Result in Finding of Ineffective Assistance of Counsel

Posted on March 15, 2008
In People v Wise 2008 NY Slip Op 02264 (3/14/2008), the Fourth Department has held that under the circumstances of the case (in which the People on appeal conceded that a conviction for one of the counts was time barred and the Appellate Division dismissed the count) the failure of counsel to raise a dispositive statute of limitations defense did not deny the defendant his right to effective assistance of counsel...

Strict Construction of Requirement of Notice of Right To Testify at Grand Jury

Posted on March 15, 2008
People v Pattison 2008 NY Slip Op 02230 (3/14/2008)Defendant further contends that County Court erred in denying his motion to dismiss the indictment based on the violation of his right to testify before the grand jury without conducting a hearing. We agree with defendant that a hearing is required...

Recent Court of Appeals Decisions on Crawford v Washington (541 US 36 [2004])

Posted on March 09, 2008
On February 19, 2008, the Court issued decisions in three cases with Crawford issues, two opinions regarding the application of Crawford. In so doing, the Court took a nuanced middle ground regarding the tests to be used in decding whehter evidene is testimonial and is, thus, subejct to the confrontation requiremenst for testimonial evidence set forth in Crawford...

Sentences are Imposed by Judges and Not by DOCS

Posted on March 09, 2008
Norm Effman lived an appellate attorney's dream. On the morning of February 20, 2008 he argued two cases challenging the authority of the Department of Corrections to add a term of post release supervision {PRS} to a sentence when the sentencing judge has not imposed PRS...

Other Significant AD 4th Department Decisions Issued February 8, 2008

Posted on February 10, 2008
1. People v Prior 2008 NY Slip Op 01189 [2/8/08]Contrary to defendant's contention, County Court did not err in admitting evidence that defendant was on parole at the time of the crime, had stopped reporting to his parole officer and had violated parole by leaving New York State immediately thereafter...

Evidence of Common Scheme or Just Evidence of Propensity?

Posted on February 10, 2008
The Court divided as to whether, in a sex crime case, the People should be allowed to present testimony that the defendant committed similar acts with the victim in another county during the same time frame as that alleged in the case at bar. In People v Leeson 2008 NY Slip Op 01243 [2/8/08], County Court admitted extensive testimony from the victim, her brother, and her mother concerning two incidents, occurring in "late August, early September," in which defendant took the victim and her brother to a house and office in Penn Yan, Yates County, to help clean it, and there "some of the same things happen[ed in Penn Yan] as happened on the side of the road near [the victim's] mom's house[]" in Ontario CountyThe majority held that admission was proper in a case in which the People's theory was that defendant planned to place the victim in secluded locations in which she was alone with him for the purpose of engaging in sexual activity with her...

Can a Seizure Lawfully be Based on the Officer?s Mistakes as to the Law?

Posted on February 10, 2008
In People v Estrella 2008 NY Slip Op 01239 [2/8/08] the Court divided as to whether the stop of a vehicle with Georgia license plates was lawful where the window tint rendered them less transparent than required pursuant to a Georgia statue which had already been declared unconstitutional...

Insufficient Specificity of Insufficiency of Proof?

Posted on February 10, 2008
Ever since the Court in People v Gray (86 NY2d 10) made clear that a general motion for a trial order of dismissal (T.O.D.) which fails to specify the alleged insufficiency of proof does not preserve the claim that the proof was insufficient counsel and courts have struggled with the questions as what wording is needed in a T...

Retained Counsel Cannot Withdraw Simply Because He Hasn?t Been Paid

Posted on February 10, 2008
People v Woodring 2008 NY Slip Op 01234 [2/8/08]Contrary to defendant's contention, the court did not improvidently exercise its discretion in denying trial counsel's motion to withdraw as defendant's attorney. In support of the motion to withdraw, defendant's attorney stated that defendant had not been returning his telephone calls and had refused to accept several plea offers, and he stated that defendant's family had "exhausted" their financial resources and could no longer afford to pay him...

The Right To Present Evidence Of Threats By Complainant Is Limited

Posted on February 10, 2008
In People v Valentine 2008 NY Slip Op 01231 [2/8/08] the Court affirmed holdings restricting the ability of a defendant to have a jury consider evidence of the complainant?s hostility towards the defendantWe reject the contention of defendant that the court violated his constitutional right of confrontation by refusing to admit in evidence a tape recording of threats made against him by his ex-wife...

The Initial Aggressor and the Justified Use of Deadly Physical Force

Posted on February 10, 2008
There may be circumstances in which a defendant is the initial aggressor and can still justifiably respond with deadly physical force.In People v Mc Williams 2008 NY Slip Op 01229 [2/8/08] the Court that ?[W]here there is a reasonable view of the evidence that the defendant initiates nondeadly offensive force and is met with deadly physical force, the defendant may be justified in the use of defensive deadly physical force and that, in such cases, the term initial aggressor is properly defined as the first person in the encounter to use deadly physical force (see e...

Is People v Ventimiglia Still the Controlling Law?

Posted on February 10, 2008
In a number of recent decisions the Fourth Department has approved the admission of uncharged crime evidence despite the failure of the People to first obtain a pretrial Ventimiglia (52 NY2d 350) ruling. Most recently, in People v Maclean, 2008 NY Slip Op 01188 [4th Dept 2/1/08] the Court held thatWe reject the contention of defendant that he was deprived of a fair trial when the court allowed the People to elicit evidence concerning uncharged crimes without first obtaining a Ventimiglia ruling...

AD 4th Department Decisions of February 1, 2008

Posted on February 03, 2008
People v Whyte 2008 NY Slip Op 00740 Contrary to the contention of defendant, County Court properly refused to suppress evidence allegedly obtained as a result of a violation of his physician-patient privilege. Indeed, "even if there was a violation of the physician-patient privilege, the suppression of the evidence found as a result is not required" (People v Greene, 9 NY3d 277, 280)...