Forcing Inmates to Particpate in Programs In WhichThey Must Admit Guilt Described As An Unfair “Hobson’s Choice”
One of the most difficult issues persons convicted of sex crimes have is how to participate in sex offender programs required for release or favorable classification without admitting conduct that was denied at trial and may be denied on re-trail, if an appeal is successful. The Fourth Department, in People v Kearns (2009 NY Slip Op 09800 [4th Dept 12/30/09]), recognized this dilemma and held it was wrong for a inmate to be penalized...
read morePossession of Cash a Month after Alleged Drug Sale Inadmissible
A defendant’s possession of case at time of arrest is not admissilbe if not linke to criminality. Thus, in People v Sumter (2009 NY Slip Op 09782 [4th Dept 12/30/09]), the Appellate Division, Fourth Department held that the trial court erred in admitting in evidence testimony concerning the seizure of $1,027 in cash from defendant at the time of his arrest, as well as the cash itself. Defendant was arrested over one month after...
read moreKnowing Where a Gun is Kept Does Not Establish Possession
The Appellate Division, Fourth Department, in People v Carmichael (2009 NY Slip Op 09788 [4th Dept 12/30/09]), held that the evidence is legally insufficient to support a conviction of criminal possession of a weapon in the third degree where, upon his arrest, the defendant told the police that the gun was in a safe located on a closet shelf in his mother’s bedroom and that he lived in his mother’s house. Defendant gave the...
read moreObjection Not Required Where Prosecution Switches Theories
In People v Gunther (__AD3d__, 2009 NY Slip Op 08656 [11/20/09]) the Fourth Department re-affirmed the rule that a person may not be convicted of a crime based upon a theory different from that charged in the indictment. In Gunther, the defendant was charged with Sex Abuse in the First Degree. for allegedly touching the complainant’s vagina with his penis. However, the testimony was that the defendant touched the complainant’s buttocks and leg and...
read moreBenefits & Brady
In People v Colon (__NY3d__, 2009 NY Slip Op 08477 [11/19/09])the Court of Appeals granted co-defendants’ motion to vacate their murder convictions where only two witnesses had linked the defendants to the crime and the trial prosecutor had permitted one of the witnesses to falsely state the extent of the benefits he received for testifying against the defendants. The Court held that In their role as public officers, prosecutors “must deal fairly with the...
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