Public Defense

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...

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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)...

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