Double Jeopardy and the Princess Bride
Among the many important life lessons set forth in The Princess Bride is the distinction between dead and mostly dead: Miracle Max: It just so happens that your friend here is only mostly dead. There’s a big difference between mostly dead and all dead. Mostly dead is slightly alive. With all dead, well, with all dead there’s usually only one thing you can do.Inigo Montoya: What’s that?Miracle Max: Go through his clothes and look...
read moreJust Because Parker Warnings Were Given Doesn’t Mean Trial Can Proceed In Absentia
In reversing a conviction after a trial held in absentia, the Fourth Department, in People v Houghtaling (4th Dept 9/30/11), explained that County Court erred in conducting the trial in his absence. Even assuming, arguendo, that the court advised defendant of the scheduled trial date and warned him that the trial would proceed in his absence if he failed to appear (see generally People v Parker, 57 NY2d 136, 141), we conclude that the...
read moreOne Can’t Waive Indictment After Being Indicted
In People v Spencer (4th Dept 9/30/11) the Appellate Division, Fourth Department, reversed a conviction and vacated a Superior Court Information (SCI) where the defendant pled guilty pursuant to a SCI after he was indicted for a crime arising from the same incident. As the Court explained the waiver of indictment was invalid inasmuch as there is no evidence in the record before us that a local criminal court held him over for the...
read moreFrank Sterling and the Denial of a Motion for DNA Testing
In an earlier post today, I wrote about Mark Christie pled guilty this week to the murder for which an innocent man, Frank Sterling, had served 18 years in prison, prior to his exoneration (see). As I discussed, one of the many reasons it took so long to establish Frank Sterling’s actual innocence is that the trial court denied a motion pursuant to CPL 440.30(1-a), for DNA testing. Then, compounding the problem, the Appellate...
read moreLeave To Appeal Generally Required to Challenge Restitution Order
The Appellate Division, Fourth Department, in People v LaVilla (4th Dept 8/30/11) has again held that an exception to the general rule that cannot be appealed as of right is when the restitution hearing was bifurcated from sentencing: “[a]s a general rule, a defendant may not appeal as of right from a restitution order in a criminal case . . . Here, however, [County C]ourt bifurcated the sentencing proceeding by severing the issue of...
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