Reversal Due to Unpreserved Prosecutorial Misconduct
In People v Fredrick, 2008 NY Slip Op 06056 [4th Dept 7/3/08] [here] the Fourth Department not only reversed a conviction due to unobjected to prosecutorial misconduct, but in doing so the Court expressly refused to consider whether the misconduct contributed to the verdict. In reversing in the interest of justices, the Court wrote as defendant correctly contends, the prosecutor improperly vouched for the credibility of the People’s witnesses during both his opening and...
read moreHorseshoes, Hand Grenades, and Predicate Sentencing:
Besides the classic examples of horseshoes and hand grenades, compliance with the requirements for predicate sentencing is apparently another instance in which getting close is credited. In People v Mateo, 2008 NY Slip Op 06087 [4th Dept 7/3/08](here] the Fourth Department considered the consequence of the failure of the People to file a second felony offender statement as required by CPL 400.21 (2) following his retrial. The Court noted that [t]he People filed a...
read moreWhen Does a “Conviction” Occur?
by James Eckert Many statutes impose harsher penalties on a defendant who commits a crimeafter he has been “convicted” of another crime. For example, a UUMVconviction after a prior is more serious, the second DWI is a felony and soon. Today, in People v Montilla, the Court of Appeals held that adefendant is convicted, at least for some purposes, the day he pleadsguilty. A judgment of conviction is based on the date sentence has...
read moreCourt Divided As To What Consititutes Individualized Showing Needed To Require Defendant To Wear Physical Restraints At Trial
In People v Buchanan [4th Dept 6/6/08] (here) the Fourth Department unanimously held that the use of a stun belt that is not visible to the jury is subject to the same judicial scrutiny as other forms of physical restraint that are visible. Spefically, the Court held that the use of a stun belt that is not visible to the jury requires the court to make the same individualized security determination required for the...
read moreReversal for Brady Violation Absent Specific Request for Information
n People v Hunter (6/12/08) a unanimous Court of Appeals held that in a sex case, where the defense was consent, it was a Brady violation requiring reversal for the prosecutor to withhold from the defense information that in another pending case the same complainant has accused a man of rape and his claim was that the sex had been consensual. The Court rejected the argument that the subsequent guilty plea by the defendant...
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