Attorneys Have Duty to Inform Defendants that the Ultimate Decision Whether to Testify is the Defendants’ Alone
Both the United States Supreme Court and the New York Court of Appeals have held that once a defendant chooses to be represented by counsel, counsel and not the defendant has control over most strategic decisions are made by the attorney and not the defendant (Jones v Barnes, 463 US 745, 751 [1983]; People v White, 73 NY2d 468, 478 [1989]). However, there are a few decisions that are so critical that they can...
read moreSpelled Just As It Sounds: 2 gs, 2 zs, and 2 ts.
David Juergens, after taking a thirteen year hiatus from working on criminal appeals, obtained reversals of two convictions for a single client, one for burglary after a trial and the other for criminal possession of a weapon after a guilty plea (see, People v Williams,2010 NY Slip Op 09663 [Appeal number 1, 4th Dept 12/30/10] and People v Williams,2010 NY Slip Op 09663 [Appeal number 2, 4th Dept 12/30/10]). The primary substantive issue on...
read moreTactics to Consider in Trying a Child Sex Case
By Jill Paperno, Second Assistant Monroe County Public Defender I just finished a child sex offense trial, and I thought I’d share some thoughts. I tried a few different things this trial that you may want to consider (or not): 1. Voir dire: In voir dire the potential jurors are asked if they can be fair when the case involves young children. I tried explaining more about what it was going to be like...
read morePrudent Counsel Will Continue to Challenge the Constitutionality of New York’s Persistent Felony Offender Sentencing Statutes
Back in March, I wrote about the decision in Besser v Walsh, 601 F3d 163 [2d Cir 3/31/10]) in which the United States Court of Appeals for the Second Circuit struck down New York’s persistent felony offender law as unconstitutional, holding that “the New York courts’ upholding of the constitutionality of the New York state persistent felony offender (PFO)sentencing statutes after the United States Supreme Court’s decision in Blakely v Washington (542 US 296...
read moreCan a Defense Counsel Validly Concede Guilt to One or More Counts Over the Defendant’s Objection?
In People v Colville (2010 NY Slip Op 07185 [2nd Dept. Oct 5, 2010]) the Second Department, without reaching a decision on the issue, engaged in detailed review of the arguments as to whether the decision to submit a lesser included offense is a fundamental one that must be made by the defendant or is a strategic one that can be made by counsel. The Colville court noted that courts have split on this...
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