Lower Courts Erroneously Denied Motions for Suppression of Evidence in Three Cases
In three separate cases decided on December 31. 2008, the Appellate Division, Fourth Department, held that the lower courts erred in denying motions for suppression of evidence. In People v Ervin (2008 NY Slip Op 10281 [4th Dept 12/31/08], the Court applied Chapple-Bethea and held that the suppression court erred in refusing to suppress a statement made by defendant in the police vehicle while en route to the police station and in refusing to...
read moreErrors in Presentence Investigation Reports Need to be Objected to Before the Sentencing Court
Erroneous information in presentence reports can have all sorts of negative consequences to a defendant. Thus, when inaccurate, prejudicial information is in a presentence reports, it is critical that counsel seek to have the report amended. Critically, it is the trial court counsel, who must seek the changes. As the Fourth Department, held in People v Hall, 2008 NY Slip Op 10361 [12/21/08], if such relief is not sought at the lower court, the...
read moreCourt Considers Sentencing Issue Sua Sponte, To Defendant’s Detriment
In a reminder that there are real risks to appealing when a defendant received a sentence less than the law requires, the Fourth Department in People v Allen, 2008 NY Slip Op 10267 [12/21/08] held that the sentence was unlawfully short and remitted the case for resentencing. Of note, this issue was not raised by the parties: We further conclude, however, that the sentence imposed on the count of criminal possession of a controlled...
read moreIt Isn’t Ineffective To Fail To Properly Object To Legally Insufficient Proof Resulting in a Conviction for a Crime Not Proved
In 2001, the New York Court of Appeals, in People v Hines, 97 NY2d 56 (2001), held that where a motion for a trial order of dismissal at the end of the People’s case is denied and the defendant then presents proof, waives the claim that the proof presented by the People was insufficient, and instead a trial order of dismissal motion must be made and based on all of the proof presented, including...
read moreAdmission of Preliminary Hearing Testimony Held to Violate Defendant’s Right to Confrontation
Sometimes there are collateral consequences to restrictive rulings of a local court judge at a preliminary hearing limiting the scope of cross-examination of prosecution witnesses. In People v Harvey, 2008 NY Slip Op 10329 [4th Dept 12/31/08] the Fourth Department reversed defendant’s convictions for criminal possession of a weapon in the second degree (Penal Law § 265.03 [former (2)]) and reckless endangerment in the first degree (§ 120.25) because the court erred in admitting...
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