Relief Granted On Issue Only Raised In Pro Se Supplemental Brief
As I wrote a few years ago, the most difficult and important part of an appellate attorney’s job is identifying possible issues. An appellate record is like a puzzle that the attorney must solve to discover what issues are present and worth raising. An issue not raised is not likely to result in reversal. That should be enough incentive to scour the record for possibly meritorious issues. If not, the possibility that the court...
read moreProsecutorial Misconduct: Naming Names
Appellate courts confronted with prosecutorial misconduct struggle to find a means to effectively communicate their disapproval of the misconduct without reversing the conviction. Consequently, appellate judges sometimes admonish the appellate prosecutor during oral argument and then issue a decision affirming the conviction upon a finding that the misconduct was harmless error. Of course, the discomfort experienced by the appellate counsel is unlikely to produce a change of behavior in the trial prosecutor who obtained the conviction which was affirmed. Indeed, more than a quarter of a century ago one commentator wrote that Perhaps the most significant reason for the continued...
read moreTrial Tip: Dealing With Inferential Hearsay or Bolstering
byJill Paperno, Special Assistant Monroe County Public DefenderOften the DA will try to introduce hearsay testimony as well as what is considered inferential hearsay and bolstering testimony at trial. They may ask an officer, “Did you talk to the witness Mr. So and So” and then ask the officer, “And after talking to that witness, did you arrest the defendant.” The testimony is trying to get the jury to infer that based on the...
read moreCounsel’s Options When Proof Is Insufficient To Prove Charged Offense, But Sufficient To Prove Lesser Included Offense
by Jill Paperno, Special Assistant Monroe County Public Defender When you make a TOD motion, if the proof is sufficient to sustain a lesser included charge, the court may not grant the TOD. (CPL 290.10 [“the court may, except as provided…upon motion of the defendant, (a) issue a ‘trial order of dismissal,’ dismissing any count of an indictment upon the ground that the trial evidence is not legally sufficient to establish the offense charged therein...
read moreLicence Restored Where Video of Driver After Arrest Shows No Basis for Driving While Intoxicated and Driving While Impaired Charges
In Matter of Fermin-Perea v. Swarts (2012 NY Slip Op 03514 [First Dept 5/3/12], by a 3-2 vote the Appellate Division, First Department granted an Article 78 petition nullifying the DMV’s revocation of a license after a refusal to submit to a chemical test, because the video of the defendant/Petitioner taken 25 minutes after his arrest did not display any indicia of impairment or intoxication. The majority explained The arresting officer’s refusal report, admitted...
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