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Legal Research

: New York Supreme Court Criminal Term Library

Criminal Law and Procedure Case Summaries From Pace and Schmidt

By David Badertscher, PLL

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Source: <a href="http://www.pacehughes.com/ObfuscatedForm.shtml?email_to_xmlpage=../pacehughes.xml&email_to_xmlprop=firmemail" target="_blank">Pace & Schmidt</a>. October 28-30, 2008 For personal use only -- Not for Commercial Distribution [/] <a href="http://caselaw.lp.findlaw.com/data2/circs/5th/0741004cr0p.pdf" target="_news">US v. Constante</a> Sentence for possession of a firearm by a convicted felon is vacated and remanded where prior state convictions for burglary did not constitute violent felonies for sentence-enhancement purposes. (Revised opinion) [10/30] <a href="http://caselaw.lp.findlaw.com/data2/floridastatecases/10_2008/sc08-699.pdf" target="_news">In Re: Standard Jury Instructions in Criminal Cases - Report No. 2008-04 </a> Upon the recommendation of the Supreme Court Committee on Standard Jury Instructions in Criminal Cases, the court adopts amendments to existing criminal jury instructions and eliminates two current instructions. [10/30] <a href="http://caselaw.lp.findlaw.com/data2/floridastatecases/10_2008/sc07-1841.pdf" target="_news">In Re: Standard Jury Instructions in Criminal Cases - Report No. 2007-08</a> Upon the recommendation of the Supreme Court Committee on Standard Jury Instructions in Criminal Cases, the court adopts amendments to existing criminal jury instructions and authorizes new instructions. [10/30] <a href="http://caselaw.lp.findlaw.com/data2/circs/8th/081317p.pdf" target="_news">US v. Pando</a> A sentence for a drug conspiracy offense is affirmed where, contrary to defendant's claim, the district court did not err in assessing a criminal history point under U.S.S.G. section 4A1.2 for a prior Colorado conviction for driving while ability impaired (DWAI). [10/30] <a href="http://fsnews.findlaw.com/cases/1st/081344.html" target="_news">US v. Levesque</a> A forfeiture order for $3,068,000 for conspiracy to possess with intent to distribute 100 kilograms or more of marijuana, is vacated and remanded where: 1) 21 U.S.C. section 853 authorizes money judgments; 2) the case is remanded to give district court the opportunity to consider whether and to what extent the ruling in the recent Supreme Court case, US v. Santos, 128 S. Ct. 2020 (2008), affects the forfeiture determination in this case; and 3) the case is remanded for lower court to consider whether the imposition of the forfeiture violated the Excessive Fines Clause of the Eighth Amendment in light of recent pertinent case law. [10/30] <a href="http://fsnews.findlaw.com/cases/1st/072425.html" target="_news">US v. Polk</a> Sentence of fifteen years and eight months incarceration for attempting to produce child pornography is affirmed where: 1) there was no gross disproportionality between the fifteen-year mandatory minimum term of imprisonment established by 18 U.S.C. section 2251(e) and the offense of which the defendant was convicted; and 2) the defendant's Eighth Amendment challenge failed. [10/29] <a href="http://caselaw.lp.findlaw.com/data2/circs/8th/063438p.pdf" target="_news">US v. Lee</a> A sentence for various counts of bank fraud and aggravated identity theft is affirmed where: 1) the district court did not abuse its discretion in running several of the aggravated identity theft counts consecutively to each other; and 2) all of defendant's other issues on appeal were barred by his plea agreement or outside the scope of a remand order, and thus were barred. [10/29] <a href="http://fsnews.findlaw.com/cases/ca/caapp4th/slip/2008/c057444.html" target="_news">People v. Newby</a> Conviction and sentence for aggravated mayhem, infliction of corporal injury on a cohabitant, battery, criminal threats, and grand theft are affirmed over claims that: 1) the trial court prejudicially erred in instructing the jury, pursuant to CALCRIM No. 800, that a "disfiguring injury may be permanent even if it can be repaired by medical procedures"; and 2) consecutive sentencing on a grand theft count contravened defendant's Sixth Amendment rights under Apprendi and its progeny. [10/29] <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=tx&vol=app/17574&invol=1" target="_news">Reed v. Texas</a> Reversal of a conviction for deadly conduct is affirmed where defendant, being inside a habitation, could not have discharged a weapon "at or in the direction of" that habitation. [10/29] <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=tx&vol=app/17566&invol=1" target="_news">Luna v. Texas</a> In a capital murder case, conviction and death sentence are affirmed on automatic appeal over claims of error regarding: 1) the lack of a bifurcated proceeding for guilt and sentencing; 2) defendant's competency and the validity of his guilty plea; 3) the unanimity of the jury verdict; 4) the validity of a warrantless search of an apartment where defendant had been staying; 5) the admission of certain victim-impact testimony; 6) the validity of an in-court witness identification; 7) the court's refusal to allow defense counsel to "close the arguments on mitigation"; 8) denial of defendant's motion to preclude the death penalty as a sentencing option; 9) the constitutionality of the sentencing procedure; and 10) the constitutionality of the court's charge to the jury on punishment. [10/29] <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=tx&vol=app/17554&invol=1" target="_news">Segundo v. Texas</a> In a capital murder case, conviction and death sentence are affirmed on automatic appeal over claims of error regarding: 1) admission of evidence of another rape-murder committed by defendant; 2) denial of a request to instruct the jury on lesser-included offenses; 3) jury selection issues; 4) admission of parole revocation documents; 5) instructions on extraneous acts of misconduct during the penalty phase; 6) the warrantless seizure of defendant's blood sample; 7) the retention of defendant's DNA in a databank even after the expiration of his parole; 8) the exclusion of "alternative perpetrator" evidence; 9) the constitutionality of the death-penalty statute; 10) the charge to the jury in the punishment phase; and 11) the constitutionality of the lethal-injection protocol. [10/29] <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=tx&vol=app/17534&invol=1" target="_news">In Re Johnson v. Tenth Judicial Dist. Court of Appeals at Waco</a> In a mandamus proceeding challenging an appeals court order requiring a judge to vacate his order mandating withdrawal of funds from an inmate's account to pay court costs, petition for relief is dismissed where the proceeding did not involve a "criminal law matter" and the court therefore lacked mandamus jurisdiction. [10/29] <a href="http://caselaw.lp.findlaw.com/data2/circs/7th/072421p.pdf" target="_news">US v. Jackson</a> Sentence for being a felon in possession of a firearm is affirmed over objections regarding: 1) failure to adhere to established policy in imposing an above-guidelines sentence; 2) the assessment of defendant's criminal history; 3) the weight given to unpaid traffic fines; and 4) failure to fully consider defendant's youth and borderline intellectual functioning. [10/29] <a href="http://caselaw.findlaw.com/scripts/getcase.pl?court=tx&vol=app/17579&invol=1" target="_news">Texas v. Iduarte</a> Reversal of suppression of evidence of an alleged aggravated assault on a peace officer is affirmed where, whether or not police had probable cause to enter defendant's apartment in the first place, evidence of the subsequent assault was admissible. [10/29] <a href="http://caselaw.findlaw.com/scripts/getcase.pl?court=tx&vol=app/17556&invol=1" target="_news">Pecina v. Texas</a> In a murder case, denial of a motion to suppress statements made to police by defendant is reversed where defendant invoked his Sixth Amendment right to counsel when asked if he wanted a court-appointed attorney, and his subsequent agreement to speak with police, did not indicate that he had initiated the contact. [10/29] <a href="http://caselaw.findlaw.com/scripts/getcase.pl?court=tx&vol=app/17542&invol=1" target="_news">Fischer v. Texas</a> Reversal of a conviction for murder is reversed where evidence was properly admitted that defendant was one of several people who could have stolen the murder weapon from the store where he worked just before the crime was, committed, and the state proved beyond a reasonable doubt that defendant did steal the weapon. [10/29] <a href="http://caselaw.findlaw.com/scripts/getcase.pl?court=tx&vol=app/17536&invol=1" target="_news">Taylor v. Texas</a> In a prosecution for aggravated sexual assault of a child, conviction is affirmed where: 1) a child-victim's statement identifying her assailant to a mental-health therapist may be admissible under an exception to the hearsay rule; 2) in this case, the prosecution did not carry its burden to demonstrate that the statement in question should be excepted from the rule; but 3) the error in admitting the testimony was harmless. [10/28] <a href="http://caselaw.lp.findlaw.com/data2/circs/5th/0751491cr0p.pdf" target="_news">US v. Woods</a> In an appeal of a sentence for distributing crack cocaine, imposition of a supervised-release condition forbidding defendant from residing with any person to whom she was not ceremonially married or related by blood is vacated where the condition was overbroad and involved a greater deprivation of liberty than was reasonably necessary to achieve sentencing purposes. [10/28] <a href="http://caselaw.lp.findlaw.com/data2/circs/2nd/070149p.pdf" target="_news">US v. Zedner</a> Appeal from a conviction for attempted bank fraud is dismissed with prejudice over claims of error that: 1) in December 2006, jurisdiction of defendant's case was in the present court rather than in the district court and therefore his 2006 conviction was a nullity; and 2) that if the district court had jurisdiction, it should have dismissed the original indictment with prejudice rather than without prejudice, pursuant to the Speedy Trial Act, 18 U.S.C. section 3161. <div> The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Copyright 2008 by <a href="http://www.pacehughes.com/ObfuscatedForm.shtml?email_to_xmlpage=../pacehughes.xml&email_to_xmlprop=firmemail" target="_blank">Pace & Schmidt</a>. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement.</div>

Full post as published by New York Supreme Court Criminal Term Library on October 31, 2008 (boomark / email).