Challenging an Expansive Application of the Coconspirator’s Exception to the Hearsay Rule
Ben Trachtenberg, a Visiting Assistant Professor at Brooklyn Law School, has written an article which both documents and criticizes the recent trend of federal prosecutors seeking to expand the scope of Fed. R. Evid. 801(d)(2)(E), which allows the admission against a defendant of statements made by a coconspirator in furtherance of their joint crime. AUSAs have characterized the exception as a “joint venture exception,” arguing that it covers statements made in furtherance of any...
read moreImportant Case on Requirement that Court Inform Defendant of Mandatory Consecutive Nature of Sentence
In People v Morbillo(2008 NY Slip Op 09102, 56 AD3d 694 [2d Dept 11/18/08]) the Second Department considered the consequence of the failure of a superior court, during the plea proceedings, to advise the defendant that his sentence would run consecutively to the undischarged sentence on his prior conviction. The Court held that since, pursuant to Penal Law ยง 70.25 [2-a], the consecutive sentence was a direct consequence of the plea, the court’s failure...
read moreFourth Department Splits on Sufficiency of Corroboration of Unsworn Testimony of Complainant
In People v People v Kolupa (2009 NY Slip Op 01039 [4th Dept 2/11/09]) the court split 3-2 as to whether there was sufficient corroboration of the testimony of the 7 year old complainant regarding a rape charge. More importantly, it appears that that the Court split as to what type of corroboration is required. The majority held that the unsworn testimony of the seven-year-old victim was sufficiently corroborated by evidence of defendant’s opportunity,...
read moreEvidence Supported an Instruction on a Claim of Right Defense
In People v Baroody (2009 NY Slip Op 01020 [4th Dept 2/11/09]) the Fourth Department reversed a larceny conviction upon a finding that the trial court erred in failing to instruct the jury on a claim of right defense. The evidence was that the defendant had instructed an auto shop employee to install two tires owned by Seneca County on defendant’s personal vehicle. Defendant testified at trial that the owner of the auto shop...
read moreQuestions to Arrestee During Execution of Search Warrant Required Miranda Warnings
In People v Flowers (2009 NY Slip Op 01044 [4th Dept 2/11/09]) , the defendant was arrested for Criminal Possession of a Controlled Substance in the Third Degree (subdivision 12) while the police were executing a search warrant upon his home. Without any Miranda warnings, the arresting officer asked the defendant how much money cash he had in his pockets. The defendant replied that he had $600. Then, the officer twice asked the the...
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