Check the Certificate of Conviction — It is Often Wrong
Since Corrections officials must follow the terms of a certificate of conviction, it is critical that appeals attorneys review the certificate of conviction and determine if it accurately reflects the appellant’s convictions and sentences. In October, 2008 the Fourth Department noted errors in the certificates of conviction in seven different cases. In People v Wynn (2008 NY Slip Op 07432 [10/3/08]) the certificate had the wrong predicate status. In People v Switzer (2008 NY...
read moreAn Issue Likely to Result in Appellate Relief, Even When Unpreserved
One issue that the Fourth Department has repeatedly reversed on, even when unreserved is the erroneous setting of the expiration date of an order of protection. For example, in February 2008, we noted that the Court in People v Smith (2008 NY Slip Op 00904 [4th Dept 2008)held that [W]e agree with defendant that the court erred in calculating the expiration date of the order of protection without taking into account the jail time...
read morePermissible To HaveTestimony That Jailhouse Informant’s Cooperation Agreement Required Truthful Testimony
In People v Santana (2008 NY Slip Op 07377 [4th Dept 10/308]), the Court held that there was no error in permitting the attorney for a jailhouse informant to testify that pursuant to to the his cooperation agreement, the informant was required “to provide truthful cooperation” at defendant’s trial in order to receive a downward departure of his federal sentence. The Court explained that since the informant had not yet testified, his attorney could...
read moreWhen it Comes to Instructions on the Right Not To Testify, Timing Is Everything
In People v Mcknight (2008 NY Slip Op 07355 [4th Dept 10/3/08]) the Court rejected the contention that reversal was warranted because the court failed to instruct the jury at the outset of the trial that defendant had a constitutional right not to testify. Although defense counsel requested that instruction (see CPL 300.10 [2]), he did so after the People’s opening statement and thus the request was untimely (see CPL 270.40). In denying the...
read moreWhen Waiver of Appeal Does Not Encompass Sentencing Issue
Generally, the valid waiver by defendant of the right to appeal encompasses his challenges to the severity of the sentence (see People v Hidalgo, 91 NY2d 733, 737). There is an exception to this general rule. In People v Tolliver (2008 NY Slip Op 07341 [4th Dept 10/3/08]), the Court reaffirmed that even a valid waiver of the right to appeal does not encompass defendant’s challenge to the severity of the sentence where the...
read more
