Are Calibration and Simulator Solution Certificates Used in Verifying the Accuracy of the Breathalyzer Test Testimonial?
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. Thus, the admission at trial of three sworn “certificates of analysis” or affidavits showing the results of the forensic analysis performed on samples of the seized white powder was reversible error where...
read moreInvoluntary Deportation Is Not A Basis For Dismissal Of An Appeal To The Appellate Division
In People v Ventura (2011 NY Slip Op 07475 [10/25/11]) the Court of Appeals held that it is an abuse of discretion for intermediate appellate courts to dismiss an appeal because of the involuntary deportation of the appellant. The Court explained that courts have been inclined to dismiss appeals pursued by physically absent defendants because they voluntarily absconded, forfeiting their right to appeal. This Court has previously reasoned that “it [is] essential to any...
read moreSealed Records Cannot Be Obtained Solely For Use In Pending Criminal Proceedings
The sealing requirement of CPL 160.50 “was designed to lessen the adverse consequences of unsuccessful criminal prosecutions by limiting access to official records and papers in criminal proceedings which terminate in favor of the accused” http://www.blogger.com/img/blank.gif(Matter of Harper v Angiolillo, 89 NY2d 761, 766 [1997. The limited exceptions to the sealing requirement are to be strictly construed in accordance with this purpose. In Matter of Albany County Dist. Attorney’s Off. v William T. (2011...
read moreSaying “I Have A Gun” Does Not Prove That One Has A Gun
byJames Eckert, Assistant Monroe County Public Defender Is a note saying “gimme all your money, I have a gun” legally sufficient to prove robbery while in actual possession of a firearm readily capable of causing death or other serious physical injury? That is the question considered by the the Court of Appeals in, People v Grant (_NY3d_ [10/20/11) at (see). Grant dealt with a reduction based on Grand Jury minutes, wherein the only proof...
read moreWeight Of Evidence Review Must Be Manifest In Appellate Division Decision
When an appellant urges that the weight of the credible evidence does not support the conviction, the decision of the intermediate appellate court must reflect that the court exercised its authority, sitting like a thirteenth juror, to assess http://www.blogger.com/img/blank.gifwhether the evidence supports the conviction. Thus, in People v Brown (2011 NY Slip Op 07146 [10/13/11]), where the order of that Appellate Division manifested a lack of application of that review power, the Court of...
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