Sandoval Rulings Subject to Change Based on Defense Proof
A Sandoval hearing is designed to let the accused make an informed choice whether he should take the stand prior to testifying by providing a pre-trial determination of the permissible scope of cross-examination of the accused (People v Sandoval, 34 NY2d 371). Generally, a trial court’s authority to change its Sandoval ruling is limited once defendant has decided to testify in good-faith reliance on the court’s pretrial ruling (see, People v Powe, 146 AD2d...
read moreAttacking Guilty Plea as Not Knowing and Intelligent May Not be Knowing and Intelligent
When an appellant successfully challenges a conviction which followed a trial, the imposition of an increased sentence after a retrial is presumed to violate the Due Process Clause of the New York State Constitution, even where the retrial is before a different judge than imposed the original sentence (People v Van Pelt, 76 NY2d 156, 158 [1990]). There is no parallel presumption of vindictiveness when a person who successfully challenges a conviction obtained pursuant...
read moreProsecutors Have No Standing to Object to Subpoenas for Documents from Governmental Agencies
By Jill Paperno, Esq. Second Assistant Monroe County Public Defender Defense attorneys often seek subpoenas related to their cases. When defense attorneys subpoena documents from a governmental entity, we have to serve notice on the prosecutor. The prosecutors often object to such subpoenas on a variety of grounds. But do they have standing to object? As detailed below, it appears that the answer is a firm “no.” A. The Prosecutor Has No Possessory or...
read moreEx Post Facto Protection Remains in a Post-Booker Sentencing World
by Mark D. Hosken, Supervisory Assistant Federal Public Defender, Western District of New York The Ex Post Facto clause (U.S. Const. Art. I, §9) prohibits laws that increase the punishment for a crime after its commission. Garner v. Jones, 529 U.S. 244, 249 (2000). That protection is extended to the application of the United States Sentencing Guidelines. See U.S.S.G. §1B1.11(b)(1). Section 1B1.11 directs the application of an earlier guideline manual if application of a...
read moreA Particularized Review of Bill of Particulars
To understand the need for a bill of particulars it helps to first review the history of indictments in New York: In People v. Iannone, 45 N.Y. 2d 589 (1978) the Court of Appeals reviewed the history of the use and purpose of indictments. The right to be prosecuted by indictment is guaranteed by section 6 of article 1 of the NY State Constitution. No particular form is constitutionally mandated. The Court stated in...
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