New York Criminal Law and Proceduretag:typepad.com,2003:weblog-17693222010-03-09T12:31:37-05:00A resource for prosecutors, defense attorneys, judges, and others interested in the New York criminal justice system.TypePadAD1 - New Decisionstag:typepad.com,2003:post-6a010535ec28c8970c0120a91aee8b970b2010-03-09T12:31:37-05:002010-03-09T12:31:37-05:00The First Department has posted new decisions. (LC)Larry Cunninghamhttp://www.nycrimblog.com/nycrim/2010/03/ad1-1.htmlAD3 reverses and orders new trial in DWI case due to inadmissible hearsaytag:typepad.com,2003:post-6a010535ec28c8970c01310f282bf3970c2010-03-08T20:38:03-05:002010-03-08T20:38:03-05:00In People v. Johnson, the defendant was convicted of DWI. During the People's case-in-chief, a videotape of the defendant's booking was introduced into evidence. On the video, the defendant is seen invoking his rights to remain silent and to counsel....darnisha lewishttp://www.nycrimblog.com/nycrim/2010/03/ad3-reverses-and-orders-new-trial-in-dwi-case-due-to-inadmissible-hearsay-reviewed-by-jurors.htmlDoes an appellate attorney have a conflict of interest when the defendant wants him to pursue an IAC claim?tag:typepad.com,2003:post-6a010535ec28c8970c01310f54ef2f970c2010-03-08T14:39:00-05:002010-03-04T17:09:54-05:00In People v. Jones (3d Dept. 2/25/2010) (Stein, J.), the Third Department unanimously rejected the defendant's ineffective assistance of counsel (IAC) claims. The defendant initially complained that his attorney failed to make a motion to dismiss the indictment on grounds...Joshua Reecehttp://www.nycrimblog.com/nycrim/2010/03/ad3-considers-and-again-rejects-iac-claim.htmlAD2 - New Decisionstag:typepad.com,2003:post-6a010535ec28c8970c01310f7c57f2970c2010-03-08T14:23:02-05:002010-03-08T14:23:02-05:00The Second Department has posted new decisions. (LC)Larry Cunninghamhttp://www.nycrimblog.com/nycrim/2010/03/ad2.htmlRape conviction reversed over lack of evidence of victim's mental incapacity tag:typepad.com,2003:post-6a010535ec28c8970c0120a8c11c97970b2010-03-08T08:44:00-05:002010-03-04T17:01:51-05:00In People v. Dean (3d Dept. 2/18/2010), the defendant was convicted of Rape 2º and Endangering the Welfare of a Mentally Incompetent Person. The victim's ability to consent to sexual intercourse was at issue in this case. Both the defendant...darnisha lewishttp://www.nycrimblog.com/nycrim/2010/03/ad3-reverses-rape-conviction-over-lack-of-evidence-on-the-victims-mental-incapacity-.htmlHearing required on voluntariness of guilty plea since plea linked to defendant's furlough requesttag:typepad.com,2003:post-6a010535ec28c8970c0120a8c08e47970b2010-03-05T08:10:00-05:002010-03-04T16:45:51-05:00In People v. Brown (Ct. App. 2/18/2010) (Lippman, C.J.), the defendant was charged with Robbery 3º and Grand Larceny 4º. From the onset, the defendant maintained his innocence. Nevertheless, on June 29, 2005, the defendant entered a guilty plea. On...darnisha lewishttp://www.nycrimblog.com/nycrim/2010/03/court-of-appeals-reverses-and-grants-hearing-regarding-voluntariness-of-defendants-guilty-plea.htmlAD3 considers unusual jury selection issuetag:typepad.com,2003:post-6a010535ec28c8970c0120a8b8a3fb970b2010-03-04T16:29:25-05:002010-03-04T16:29:25-05:00When a trial attorney exercises a peremptory challenge, he or she generally expects for the excused juror's involvement in the case to end then and there. The reasoning goes that, if a prospective juror excused under a peremptory challenge reenters...Joshua Reecehttp://www.nycrimblog.com/nycrim/2010/03/ad3-considers-unusual-jury-selection-issue.htmlAD1, AD3, AD4, & AT1 - New Decisionstag:typepad.com,2003:post-6a010535ec28c8970c01310f62d820970c2010-03-04T15:54:09-05:002010-03-04T15:54:09-05:00There are new decisions today from the First, Third, and Fourth Departments, as well as the First Appellate Term. (LC)Larry Cunninghamhttp://www.nycrimblog.com/nycrim/2010/03/ad1-ad3-ad4-at1-new-decisions.htmlAD3 weighs in on SOMTA as guilty plea consequencetag:typepad.com,2003:post-6a010535ec28c8970c01310f54c548970c2010-03-02T18:06:24-05:002010-03-02T18:06:24-05:00In People v. Harnett (3d Dept., 2/25/2010) (Malone Jr., J.) (3-2), a divided Third Department held that trial courts are not required to advise defendants who are entering guilty pleas to certain sex offenses subjects them to review and possible...Joshua Reecehttp://www.nycrimblog.com/nycrim/2010/03/ad3-weighs-in-on-somta-as-guilty-plea-consequence.htmlAD1 - New Decisionstag:typepad.com,2003:post-6a010535ec28c8970c01310f5428a4970c2010-03-02T14:42:09-05:002010-03-02T14:42:09-05:00The First Department has posted new decisions. (LC)Larry Cunninghamhttp://www.nycrimblog.com/nycrim/2010/03/ad1.htmlAD1, AD2, & AD3 - New Decisionstag:typepad.com,2003:post-6a010535ec28c8970c0120a8e7806b970b2010-03-01T14:38:08-05:002010-03-01T14:38:08-05:00Late last week, the First, Second, and Third Departments posted new decisions. (LC)Larry Cunninghamhttp://www.nycrimblog.com/nycrim/2010/03/ad1-ad2-ad3-new-decisions.htmlCNH prosecution fails on causation and legal omission groundstag:typepad.com,2003:post-6a010535ec28c8970c012877b12e51970c2010-02-26T06:37:00-05:002010-02-25T18:23:24-05:00The Fourth Department recently concluded that defendant's observation of the victim using heroin in the defendant's car, removal of the victim from his car, and leaving the victim on a lawn inside a trailer park did not merit criminal liability....Joshua Reecehttp://www.nycrimblog.com/nycrim/2010/02/ad4-considers-failure-to-provide-care-in-cnh-case.htmlOpinion and hearsay issue results in new trialtag:typepad.com,2003:post-6a010535ec28c8970c012877b10774970c2010-02-25T18:11:58-05:002010-02-25T18:11:58-05:00In People v. Heil (4th Dept., 2/11/2010), the Fourth Department unanimously reversed the defendant's conviction on the basis that inadmissible hearsay was errantly admitted at trial, thus prejudicing the defendant. The defendant allegedly abused a third-grade student at the elementary...Joshua Reecehttp://www.nycrimblog.com/nycrim/2010/02/ad4-considers-hearsay-issue.htmlBronx Merger ruled unconstitutional: The aftermathtag:typepad.com,2003:post-6a010535ec28c8970c0120a8cb851c970b2010-02-23T22:44:37-05:002010-02-23T22:44:37-05:00Today, in People v. Correa (1st Dept. 2/23/2010), the First Department held that the Bronx Criminal Division (BCD) --- the experimental merger of Supreme Court and Criminal Court in Bronx County --- is unconstitutional. More on the case later, but...Larry Cunninghamhttp://www.nycrimblog.com/nycrim/2010/02/bronx-merger-ruled-unconstitutional-the-aftermath.htmlAD4 splits 3-2 over De Bour issuetag:typepad.com,2003:post-6a010535ec28c8970c0120a8ae2a22970b2010-02-23T15:19:00-05:002010-02-19T12:59:33-05:00In People v. Riddick, federal and local law enforcement officers in a van observed defendant with two other individuals at a street corner known for "violent gang activity." The driver of the officers' van pulled up to the defendant, rolled...Joshua Reecehttp://www.nycrimblog.com/nycrim/2010/02/ad4-splits-32-over-de-bour-issue.htmlCOA & AD1 - New Decisionstag:typepad.com,2003:post-6a010535ec28c8970c0120a8c93efd970b2010-02-23T13:10:33-05:002010-02-23T13:10:33-05:00The Court of Appeals has announced new decisions: People v. Williams (Ct. App. 2/23/2010) (Graffeo, J.) - double jeopardy issues in PRS resentencing People v. McDade (Ct. App. 2/23/2010) (SSM) - evidence legally sufficient for Rape In addition, the First...Larry Cunninghamhttp://www.nycrimblog.com/nycrim/2010/02/coa--1.htmlAD4 upholds enhanced sentencing based on tardiness to sentencingtag:typepad.com,2003:post-6a010535ec28c8970c0128779d0887970c2010-02-22T11:08:00-05:002010-02-19T11:41:23-05:00In People v. McMillon (4th Dept. 2/11/10), the defendant entered a plea agreement, which was conditioned on his agreement to appear to court on time. The defendant, however, failed to satisfy this condition. He arrived to sentencing one hour and...darnisha lewishttp://www.nycrimblog.com/nycrim/2010/02/app-div-4th-dept-upholds-enhanced-sentencing-based-on-strict-application-the-terms-of-plea-agreement.htmlAD2 addresses Grand Jury defects in recent decisiontag:typepad.com,2003:post-6a010535ec28c8970c0120a894327e970b2010-02-22T08:54:00-05:002010-02-17T13:32:21-05:00In People v. Walton (2d Dept. 2/9/2010), the Second Department unanimously held that an evidentiary defect is not fatal to an indictment where 1) the prosecutor instructs the grand jury to disregard the inadmissible evidence cured the evidentiary defect, and...Joshua Reecehttp://www.nycrimblog.com/nycrim/2010/02/ad2-addresses-grand-jury-defects-in-recent-decision.htmlMan 1º properly not submitted as lesser included offense of Murder 2º on these factstag:typepad.com,2003:post-6a010535ec28c8970c01287795f084970c2010-02-19T13:31:00-05:002010-02-17T13:18:31-05:00In People v. Sostre (2d Dept. 2/9/2010), the Second Department unanimously held that Supreme Court did not err in refusing to charge the jury with Manslaughter 1º as a lesser included offense of Murder 2º. During the trial, the jury...Joshua Reecehttp://www.nycrimblog.com/nycrim/2010/02/ad2-no-man1%C2%BA-jury-charge-needed-for-these-facts.htmlWhat are "business records" for Falsifying Business Records 1º?tag:typepad.com,2003:post-6a010535ec28c8970c01310f1da438970c2010-02-19T11:34:48-05:002010-02-19T11:34:48-05:00Suppose a medical clinic employs "runners" to locate automobile accident victims and take them back to the clinic. Then, suppose a physician at the clinic purports to treat accident victims at the clinic in order to submit fraudulent claims to...Joshua Reecehttp://www.nycrimblog.com/nycrim/2010/02/coa-insideroutsider-distinction-redux.htmlAD2 - New Decisionstag:typepad.com,2003:post-6a010535ec28c8970c0120a8b6d9de970b2010-02-19T11:24:31-05:002010-02-19T11:24:31-05:00The Second Department has posted new decisions. (LC)Larry Cunninghamhttp://www.nycrimblog.com/nycrim/2010/02/ad2-1.htmlAT1 - New Decisionstag:typepad.com,2003:post-6a010535ec28c8970c012877b52a29970c2010-02-18T12:39:04-05:002010-02-18T12:39:04-05:00The First Appellate Term has posted new decisions. (LC)Larry Cunninghamhttp://www.nycrimblog.com/nycrim/2010/02/at1-new-decisions.htmlCOA, AD1, & AD3 - New Decisionstag:typepad.com,2003:post-6a010535ec28c8970c012877b4f5b5970c2010-02-18T11:48:51-05:002010-02-18T11:48:51-05:00The Court of Appeals has posted new decisions: People v. Kisina (Ct. App. 2/18/2010) (Ciparick, J.) - fraudulent medical records can constitute "business records" for purposes of Falsifying Business Records 1º. People v. Brown (Ct. App. 2/18/2010) (Lippman, C.J.) -...Larry Cunninghamhttp://www.nycrimblog.com/nycrim/2010/02/coa-ad1.htmlAD2 orders new trial due to lack of proper limiting Molineux instructionstag:typepad.com,2003:post-6a010535ec28c8970c0120a8931ba7970b2010-02-18T09:32:00-05:002010-02-17T13:16:37-05:00In People v. Mendez (2d Dept. 2/9/2010), the Second Department unanimously held that a trial court must provide "proper limiting instructions" where "[e]vidence of uncharged crimes [was] properly . . . admitted 'as relevant background material'" pursuant to an exception...Joshua Reecehttp://www.nycrimblog.com/nycrim/2010/02/ad2-limiting-instructions-please.htmlAD4 modifies criminal mischief conviction over lack of evidence on damage amounttag:typepad.com,2003:post-6a010535ec28c8970c0120a8a6d688970b2010-02-17T17:38:13-05:002010-02-17T17:38:13-05:00In People v. Quigley, the defendant damaged church property. Initially he was charged and convicted, after a bench trial, of Criminal Mischief 3º. The Fourth Department agreed with the defendant's argument that his conviction was not supported by legally sufficient...darnisha lewishttp://www.nycrimblog.com/nycrim/2010/02/app-div-4th-dept-modifies-criminal-mischief-conviction-over-25000.htmlAT2 - New Decisionstag:typepad.com,2003:post-6a010535ec28c8970c0120a8ada76a970b2010-02-17T15:05:15-05:002010-02-17T15:05:15-05:00The Second Appellate Term has posted new decisions. (LC)Larry Cunninghamhttp://www.nycrimblog.com/nycrim/2010/02/at2-new-decisions.htmlNew COA case on witness bolstering and procedure for responding to jury notestag:typepad.com,2003:post-6a010535ec28c8970c012877afe584970c2010-02-17T14:52:00-05:002010-02-17T14:52:00-05:00In People v. Ochoa (Ct. App. 2/16/2010) (PIgott, J.) (4-3) and People v. Figueroa (Ct. App. 2/16/2010) (Pigott, J.) (4-3), the defendants were tried jointly for a robbery. The People alleged that the defendants forcibly stole a video game console...Larry Cunninghamhttp://www.nycrimblog.com/nycrim/2010/02/new-coa-case-on-witness-bolstering-and-procedure-for-responding-to-jury-notes.htmlSCIs and joinder of "same or similar in law" offensestag:typepad.com,2003:post-6a010535ec28c8970c0120a8ad2a3f970b2010-02-17T13:12:06-05:002010-02-17T13:12:06-05:00The defendant in People v. Pierce (Ct. App. 2/16/2010) (Graffeo, J.) was charged in two separate felony complaints with (1) Grand Larceny 4º for tricking someone into giving him a bank card, which the defendant used to withdraw money from...Larry Cunninghamhttp://www.nycrimblog.com/nycrim/2010/02/scis-and-joinder-of-same-or-similar-in-law-offenses.htmlFailure to complete diversion program: How much due process is required?tag:typepad.com,2003:post-6a010535ec28c8970c012877afd500970c2010-02-17T12:51:59-05:002010-02-17T12:51:59-05:00In People v. Fiammegta (Ct. App. 2/16/2010) (Read, J.), the defendant pleaded guilty to Burglary 2º and entered the Brooklyn DA's Drug Treatment Alternative-to-Prison Program. The People agreed to dismiss the charge if the defendant completed an 18-24 month residential...Larry Cunninghamhttp://www.nycrimblog.com/nycrim/2010/02/failure-to-complete-diversion-program-how-much-due-process-is-required.htmlCOA & AD1 - New Decisionstag:typepad.com,2003:post-6a010535ec28c8970c012877abbd52970c2010-02-16T20:10:13-05:002010-02-16T20:10:13-05:00The Court of Appeals has announced new decisions: People v. Fiammegta (Ct. App. 2/16/2010 (Read, J.) - reversal because Supreme Court did not consider evidence that the defendant was kicked out of a drug treatment program on thin evidence People...Larry Cunninghamhttp://www.nycrimblog.com/nycrim/2010/02/coa-.htmlAD2 reverses organized crime-related conviction on weight of the evidence groundstag:typepad.com,2003:post-6a010535ec28c8970c012877931498970c2010-02-12T12:30:00-05:002010-02-12T12:30:00-05:00Students in my New York Criminal Practice course at St. John's read Matter of Polito v. Walsh, 8 N.Y.3d 683 (2007), one of the key dual sovereignty cases in the double jeopardy area. Recently, AD2 added a postscript to the...Larry Cunninghamhttp://www.nycrimblog.com/nycrim/2010/02/ad2-reverses-organized-crimerelated-conviction-on-weight-of-the-evidence-grounds.htmlCOA decides curious 30.30 casetag:typepad.com,2003:post-6a010535ec28c8970c0120a8906c10970b2010-02-11T23:27:42-05:002010-02-11T23:27:42-05:00People v. Price (Ct. App. 2/11/2010) concerns the catch-all proviso in CPL § 30.30, which excludes time periods in which there are "exceptional circumstances." In Price, the defendant was charged with Attempted Disseminating Indecent Material to Minors 1º based on...Larry Cunninghamhttp://www.nycrimblog.com/nycrim/2010/02/coa-decides-curious-3030-case.htmlAD4 - New Decisionstag:typepad.com,2003:post-6a010535ec28c8970c012877920892970c2010-02-11T19:12:15-05:002010-02-11T19:12:15-05:00The Fourth Department has posted new decisions. (LC)Larry Cunninghamhttp://www.nycrimblog.com/nycrim/2010/02/ad4-new-decisions.htmlCOA clarifies fraud element of Offering a False Instrument for Filing 1ºtag:typepad.com,2003:post-6a010535ec28c8970c0120a88e14c6970b2010-02-11T13:43:43-05:002010-02-11T13:43:43-05:00In People v. Taylor (Ct. App. 2/11/2010), the defendants---personal injury attorneys---were alleged to have participated in a scheme to defraud no-fault insurance carriers by "having illegally solicited automobile accident victims exaggerate their injuries, receive excessive medical treatment, and file inflated...Larry Cunninghamhttp://www.nycrimblog.com/nycrim/2010/02/coa-clarifies-fraud-element-of-offering-a-false-instrument-for-filing-1%C2%BA.htmlCOA, AD1, & AD3 - New Decisionstag:typepad.com,2003:post-6a010535ec28c8970c0120a88e097c970b2010-02-11T13:34:55-05:002010-02-11T13:34:55-05:00There are new decisions from the Court of Appeals: People v. Taylor (Ct. App. 2/11/2010) (7-0) - reinstating conviction of attorneys for filing false retainer statements with OCA People v. Price (Ct. App. 2/11/2010) (7-0) (Lippman, C.J.) - "exceptional circumstances"...Larry Cunninghamhttp://www.nycrimblog.com/nycrim/2010/02/coa-ad1-ad3-new-decisions.htmlAD2 - New Decisionstag:typepad.com,2003:post-6a010535ec28c8970c0120a8884aa5970b2010-02-10T15:17:21-05:002010-02-10T15:17:21-05:00The Second Department has posted new decisions. (LC)Larry Cunninghamhttp://www.nycrimblog.com/nycrim/2010/02/ad2.htmlAD1 - New Decisionstag:typepad.com,2003:post-6a010535ec28c8970c01287781e6dd970c2010-02-09T16:42:15-05:002010-02-09T16:42:15-05:00The First Department has posted new decisions. (LC)Larry Cunninghamhttp://www.nycrimblog.com/nycrim/2010/02/a.htmlAT2 holds that probable cause is determined from objective analysis of facts tag:typepad.com,2003:post-6a010535ec28c8970c012877694fd7970c2010-02-08T09:13:00-05:002010-02-05T15:14:26-05:00In People v. Crane (App. Term, 2d Dept., 1/27/2010), the Second Appellate Term reversed an order of the Justice Court of the Town of New Windsor, which had granted the defendant's motion to suppress. The defendant had been stopped by...Joshua Reecehttp://www.nycrimblog.com/nycrim/2010/02/at2-holds-that-probable-cause-is-determined-from-objective-analysis-of-facts-.html