Sentencing in New York – A Primer
byJill Paperno,Special Assistant Monroe County Public Defender andauthor of Representing the Accused: a Practical Guide to Criminal Defense (See)This post is aimed at reviewing some basics of felony sentencing that those who don’t handle it on a regular basis may not be familiar with yet. First, most sentencing information can be found in Article 70 of the Penal Law, but it is dense and confusing, and even those who have practiced for years have...
read morePresumptions In Criminal Possession of a Weapon Case
by Jill Paperno, Special Assistant Monroe County Public Defender In defending a client charged with criminal possession of a weapon it is important to be familiar with the various presumptions set forth in Penal Law 265.15. (1) Machine-guns – presence is presumptive evidence that all in the area possessed (2) Presence in stolen vehicle of items specified in the statute is presumptive evidence that all in the vehicle possessed (3) Presence in an automobile...
read moreLet The Record Reflect
On direct appeal, with limited exceptions, such as facts as to which a court may take judicial notice, the appellate courts may only consider the facts as they appear on the record (see,e.g., People v Kinchen, 60 NY2d 772 [1983]). Yet sometimes significant and material portions of the proceedings may not appear on the record. For example, Sandoval hearings may be conducted in chambers without a court reporter present. Although some appellate decisions permit an appeal to be held in abeyance pending a reconstruction hearing (see,...
read moreWaiver of Appeal of Conviction is NOT Necessarily a Waiver of Appeal of Sentence
In a 5-2 decision, the Court of Appeals, in People v Maracle (2012 NY Slip Op 05121 [NY 6/27/12]), held that a waive of the right to appeal a conviction does not necessarily waive the right to appeal the sentence and that under the facts .The Court explained that While it is evident that defendant waived her right to appeal her conviction, there is no indication in the record that defendant waived the right...
read moreFourth Department, Sua Sponte, Corrects Illegal Sentence
Court have repeatedly held that where there “was no evidence of intended use of the weapon against another apart from its use in the killing of the murder victim” (People v Boyer, 31 AD3d 1136, 1139, lv denied 7 NY3d 865, amended on other grounds 87 AD3d 1413; see People v Wright, ___ NY3d ___, ___ [June 5, 2012]) the sentence imposed for criminal possession of a weapon must run concurrently with that for the murder. However, in...
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