The Use of a Peer-to-Peer File Sharing Program and Enhancement Under the Federal Sentence Guidelines
by Mark D. Hosken, Supervisory Assistant Federal Public Defender The United States Sentencing Guidelines (USSG) include enhanced punishment for those individuals convicted of a child pornography offense involving distribution. The greatest enhancement (an increase of five levels) is applied if the offense involved distribution for receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain. [USSG ยง 2G2.2(b)(3)(B).] What is distribution? Any act, including possession with intent to distribute….,...
read moreValid Waiver of Right To Appeal Held Not To Encompass Denial of Youthful Offender Status Not Mentioned at Waiver
In People v Anderson ( 2011 NY Slip Op 09364 [4th Dept 12/23/11]), after holding the that there was a valid waiver of appeal, the Appellate Division, Fourth Department held that We agree with defendant, however, that the waiver does not encompass his further contention concerning the denial of his request for youthful offender status. No mention of youthful offender status was made before defendant waived his right to appeal during the plea colloquy....
read moreThe Issuance of an Appearance Ticket Doesn’t Not Justify a Search “Incident to Arrest”
A pre-requisite of a valid search incident to arrest, is an arrest. “If there is no arrest, however, there can be no search incident thereto (see People v Evans, 43 NY2d 160, 165-166; People v Erwin, 42 NY2d 1064, 1065).” People v Kalikow (2011 NY Slip Op 09452[4th Dept 12/23/11]). In, Kalikow, the Fourth Department held that where a police officer merely issued an appearance ticket to defendant for violating a municipal open container...
read moreBullcoming v New Mexico (131 SCt 2705) Applied By the Fourth Department
In recent years, the application of the right to confrontation in the context of laboratory or DNA test evidence has been the subject of much litigation at the United States Supreme Court In Melendez-Diaz v Massachusetts (129 S.Ct. 2527 [2009]), the Supreme Court held that it violate the right of confrontation for a prosecutor to submit a chemical drug test report without the testimony of a person who performed the test subject to confrontation....
read moreA Prospective Juror with Implied Bias Is Unqualified Even If She Gives An Unequivocal Assurance She Can Be Fair and Impartial
The Court of Appeals has repeatedly held that a prospective juror with actual bias, such as an opinion that the defendant is guilty, is qualified to serve on a jury as long as gives an unequivocal assurance she can be fair and impartial (People v Nicholas, 98 NY2d 749, 751 [2002]; People v Arnold, 96 NY2d 358, 362 [2001]; People v Johnson, 94 NY2d 600, 614 [2000]). The rule is different with respect to...
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