Two Reasons Why Appellate Attorneys Fear a Failure to Identify a Valid Issue
Appellate attorneys recognize that the most critical portion of the job is issue identification. That is because generally, an appellate court is not going to grant relief not requested. So appellate attorneys are understandably afraid that a missed issue will result in a client failing to obtain relief to which he is entitled. But they also fear the embarrassment that they will miss an issue and the Court will find it and grant relief...
read moreWhen Did the Fourth Department Last Expressly Acknowledge Its Authority to Reduce Negotiated Sentences?
In People v Farrow, __AD3d , 2009 NY Slip Op 00737 [4th Dept 2/6/09], the Fourth Department’s decision raises questions as to how it envisions the scope of its powers to modify a negotiated sentence. After holding that the defendant’s one sentence written waiver of appeal was invalid and that in any event that a valid waiver of the right to appeal would not encompass defendant’s challenge to the severity of the sentence in...
read moreCJI Charge on Robbery in the First Degree Fails to Alert Jury of Requirement of Actual Possession
Counsel needs to be aware that the the CJI charge for PL § 160.15 (3) is deficient and that failure to object to its language may result in a defendant being convicted on legally insufficient evidence. The CJI charge for PL § 160.15 (3) is as follows “Under our law, a person is guilty of Robbery in the First Degree when that person forcibly steals property and when, in the course of the commission...
read moreAnother Reminder of the Danger of Appealing After a Guilty Plea
In two related appeals, the defendant in People v Tuszynski (2008 NY Slip Op 10264 [12/31/08]) and (2008 NY Slip Op 10265 [12/31/08]) challenged the consecutive sentences he received pursuant to a plea bargain for two DWI convictions stemming form the same drive, at different times. The court agreed with the defendant that the sentences of two consecutive terms of imprisonment of 1 to 4 years are illegal on the ground that his operation...
read moreSimply Asking a Defendant If He Understands That He is Waiving His Right to Appeal is Insufficient
During the plea colloquy with County Court merely asked defendant whether he understood that he was “waiving [his] right to appeal,” and defendant responded, “[y]es, I am.” The Court in People v Springstead (2008 NY Slip Op 10279 [4th Dept 12/31/08]) agreed with defendant “that his waiver of the right to appeal is invalid inasmuch as the court failed to ‘engage[] the defendant in an adequate colloquy to ensure that the waiver of the...
read more
