Ontario County Conviction Reversed Due to Prosecutorial Misconduct
Ever wonder what it takes to get a conviction reversed because of prosecutorial misconduct? How about for unobjected to prosecutorial misconduct> The Appellate Division, Fourth Department, provided an answer in People v Morrice (2009 NY Slip Op 03282 4th Dept 4/24/09). In Morrice the Court reversed a conviction for burglary and grand larceny because the District Attorney committed the following eight acts of misconduct, only some of which were objected to by trial counsel:...
read moreAssault Charges Listing Multiple Acts Connected By And/Or Language Held Defective
In People v Bauman (2009 NY Slip Op 02265, 3/26/09) the Court of Appeals held that an indictment charging depraved indifference assault under Penal Law § 120.10 (3) which alleged eleven acts over an eight month period under one count violated Criminal Procedure Law (CPL) § 200.30 (1) because it was duplicitous. The indictment charged two defendants with one count of intentional assault [*2]under Penal Law § 120.10 (1) (the first count) for allegedly...
read moreThreat of Higher Sentence If Trial Meant That Guilty Plea Was Coerced
In People v Flinn (2009 NY Slip Op 02031 [4th Dept 3/20/09]), a defendant contended that his guilty plea was coerced by County Court’s statements concerning the potential terms of incarceration in the event that defendant was convicted following a trial. Defendant had failed to raise that contention in support of his motion to withdraw the plea. Nor did he move to vacate the judgment of conviction on that ground. Despite this failure to...
read moreError to Deny Request for Brief Continuance to Present Critical Witness
In People v Oberlander (2009 NY Slip Op 02020 [4th Dept 3/20/09]), the Fourth Department held that County Court abused its discretion in denying defendant’s request for a brief continuance to present a witness who, according to defendant, would present critical testimony which, if credited would have negated an element of the crime charged. The Court explained that “by denying the request by defendant for a continuance, the court not only deprived her of...
read moreDon’t File A Crawford Motion Unless You Are Certain That There Are No Non-Friviolous Issues
In October I wrote about the risks of moving, pursuant to People v Crawford (71 AD2d 38) and Anders v California (386 US 738), to be relieved as assigned appellate attorney on the ground that the case presents no non-frivolous issues. One big risk that the Court will find that there are non-frivolous issues which counsel missed, which doesn’t make the attorney making the motion look very good. Those risks were realized in two...
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