Public Defense

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...

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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...

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