Court of Appeals Finds Failure to Object to Prosecutor’s Improper Summation Constituted Ineffective Assistance of Counsel
byJill Paperno, Special Assistant Monroe County Public Defender In a very important decision People v Fisher (2012 NY Slip Op 02416 [4/3/12]) the Court of Appeals, by a 6-1 vote, reversed convictions for various sex offenses and ordered a new trial upon a finding that the defendant’s trial attorney rendered ineffective assistance of counsel by failing to object to the prosecutor’s summation was egregiously improper and there was no evident strategic basis for counsel’s...
read moreSome Errors In Content and Service Of a Notice Of Appeal May Be Waived Or Excused
CPL 60.10 (a) provides that A party seeking to appeal from a judgment or a sentence must within thirty days after imposition of the sentence or, as the case may be, within thirty days after service upon such party of a copy of an order not included in a judgment, file with the clerk of the criminal court in which such sentence was imposed or in which such order was entered a written notice...
read moreIf It Is Not In the Stipulated Record It Is Not Before The Appellate Court
In a reminder as to the importance of including key documents in the stipulated record on appeal, the Appellate Division, Fourth Department, in People v Scott (2012 NY Slip Op 01991 [4th Dept 3/16/12]), dismissed a People’ appeal which sought to challenge the lower court’s dismissal of an indictment pursuant to CPL 30.30, where the record included the lower court’s decision, but failed to include the judgment or order dismissing the indictment. As the...
read moreOrder to Obtain DNA Doesn’t Authorize Police To Use Taser to Acquire DNA
Confronted by the police who had an order to obtain his DNA, Ryan Smith reportedly told the police “You are gonna have to Taser me if you want my DNA.” Ans so the police proceeded to use a taser to acquire Mr. Smith’s DNA. On appeal Mr. Smith challenged both the legality of the order and the use of the taser. In a 4-1 decision (People v Smith,2012 NY Slip Op 01896 (3/16/2012) the...
read moreRequest to Consult an Attorney is Not By Itself a Refusal to Take Chemical Breath Test
In People v Smith(2/16/12]) the Court of Appeals reversed a conviction for driving while impaired upon a holding that the trial court erred in permitting the People to introduce evidence that Mr. Smith refused to take a chemical breath test to determine his blood alcohol content when requested to do so by State Troopers. At the scene of his motor vehicle stop, the troopers administered Mr. Smith both Miranda warnings and chemical test warnings...
read more
