Public Defense

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.

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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...

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