Plea Premised on Mutual Mistake Vacated
In People v Grey (2009 NY Slip Op 03570 [4th Dept 5/1/09]), the Appellate Division, Fourth Department reversed a conviction because the plea was based on a mutual mistake. Specifically, the record establishes that Supreme Court erroneously assured defendant that he would retain the right to appeal with respect to the propriety of the court’s refusal to dismiss the indictment based on the denial of defendant’s right to testify before the grand jury pursuant...
read moreBelton Effectively Overruled
Perhaps the most important criminal law decision issued so far this year, was that of the United States Supreme Court in Arizona v Gant, — U.S. —, 2009 WL 1045962, in which the Court effectively (although not admittedly) overturned its holding in New York v Belton, 453 U.S. 454 (1981) regarding the permissible scope of incident of arrest searches when a person is arrested in an automobile. In 1999 Rodney Gant’s car was searched...
read moreSingle Failure to Object Constituted Ineffective Assistance of Counsel Requiring Reversal
In People v Brown (2009 NY Slip Op 03334 4th Dept 4/24/09) the Court held that a single failure, specifically the “defense counsel’s failure to object to the admission in evidence of the victim’s medical records, which contained information concerning prior allegations of sexual abuse against defendant” constituted ineffective assistance of counsel requiring reversal of a conviction for sexual abuse in the first degree and endangering the welfare of a child. The Court explained...
read moreIf At First You Don’t Succeed
What are the purposes of pre-trial identification procedures? Is it only to have the witnesses identify a suspect or should they also be used to determine the witnesses’ reliability? The Fourth Department confronted this issue in People v White (2009 NY Slip Op 03290 4th Dept 4/24/09). Identification testimony is powerful evidence of guilt. Yet, misidentification is the single greatest cause of wrongful conviction. So what should the police do when they discover that...
read moreRape in the First Degree an Inclusory Concurrent Count of Predatory Sexual Assault
In People v Scott (2009 NY Slip Op 03229 4th Dept 4/24/09) the Court reversed and dismissed the part of the judgment convicting defendant of rape in the first degree because it is an of predatory sexual assault against a child. The Court explained that pursuant to CPL 300.30 (4), concurrent counts are inclusory when the offense charged in one is greater than that charged in the other and when the latter is a...
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