Exclusion of Expert Testimony Regarding False Confessions Affirmed
Although counter intuitive, there now exists irrefutable evidence that people falsely confess to having committed serious crimes. Indeed in about a quarter of all wrongful convictions cleared by DNA evidence there had been a false confession (see, Innocence Project -Understand the Causes). Included in this group are cases in which the Fourth Department had affirmed the conviction despite a challenge to the voluntariness of the confession (See, e.g., People v Warney, 299 AD2d 956,...
read moreMore Decisions, More Failures to Renew TOD Motions
The Fourth Department issued decisions on October 2, 2009. In three of the criminal appeals (People v Bean, 2009 NY Slip Op 06947 [4th Dept 10/2/09]; People v Laing, 2009 NY Slip Op 06906 [4th Dept 10/2/09]; People v Parks, 2009 NY Slip Op 06995 [4th Dept 10/2/09] the Court noted that the trial attorney had failed to renew the motion for a trial order of dismissal (TOD motion) as has been required, at...
read moreRemember: Move and Then Move Again
In People v Kolupa (59 AD3d 1134 [4th Dept 2009])the Fourth Department split 3-2 on whether there was sufficient corroboration of unsworn testimony of a 7-year-old to support conviction for attempted rape, criminal sex act 1st degree and sexual abuse in the 1st degree. The purported corroboration was Mr. Kolupa’s statement that he had exposed himself to the boy – a statement that did not mention any touching or physical act. The three judge...
read moreMaybe TOD Motions Are Not Always Required
As you know, it has long been held that counsel fails to preserve for appellate review legal insufficiency claims when he has failed to raise the issue in a specific TOD motion (see, People v Gray, 86 NY2d 10 [1995]). However, CPL 290.10, which governs TOD motions, gives courts the authority to grant TODs only when the evidence is not only legally insufficient as to the charged offense but also insufficient to support a...
read moreDeconstructing McDaniel – Ineffective Assistance and Failure to Make A Specific Motion for a Trial Order of Dismissal
In People v McDaniel (54 AD3d 577 [1st Dept 2008]) the First Department divided 3-2 as to whether there was sufficient proof of the display of a weapon to constitute Robbery in the First Degree. Apparently, the issue which divided the Appellate Division was not clearly preserved in a motion for a trial order of dismissal. Consequently, the issue before the Court of Appeals was whether it was ineffective assistance of counsel to fail...
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