Selected Criminal and Family Law Decisions From the First Department
By Janet Somes: From January & February, 2008 CRIMINAL LAW People v Stephens, 47 AD3d 586 (decided Jan. 31, 2008) Lower court order of suppression of evidence reversed (ouch). Defendant was taking a walk in area where there had been some robberies. One hand was swinging while his other hand was still, near his waistband. Defendant “apparently noticed the officers” but kept looking straight ahead “as if he was very nervous or had seen...
read moreRecent 2nd Department Decisions
From Jim Eckert: People v Russell , 47 AD3d 732 – Defendant, charged with CPW3, claimed temporary lawful possession. The court ruled that the trial court failed to make clear in the jury instructions that the People had to disprove this claim beyond a reasonable doubt, especially in light of the trial court’s failure to adequately marshal the evidence. Answering a jury question on the issue still failed because “the proper standard regarding the...
read moreAD 4th Dept: Selected Decisions of March 21, 2008
Reckless, But Not Depraved In People v Bolling 2008 NY Slip Op 02654 (4th Dept 3/21/08), the Fourth Department, once again, has reduced a depraved murder conviction to that of reckless manslaughter. In this case, the Court held that the fatal shot to the decedent’s thigh “does not warrant a finding that defendant’s conduct demonstrated the utter disregard for the value of human life’ necessary to support the convictionof depraved indifference murder (People v...
read moreUnreasonable To Respond To Attack
span style=”font-style:italic;”>People v Mcclellan 2008 NY Slip Op 02271 (3/14/2008) In holding that the proof was sufficient for a jury to find justification disproved, the Court held that even if a 17 year old African-American, who was walking with four African-Americans companions in a predominately Caucasian neighborhood, when five Caucasian men yelled racial epithets and initiated a physical confrontation, actually believed that deadly physical force was necessary,” it nevertheless supports a finding that defendant’s...
read moreFailure to Raise Dispositive Statute of Limitations Defense Will Not Always Result in Finding of Ineffective Assistance of Counsel
In People v Wise 2008 NY Slip Op 02264 (3/14/2008), the Fourth Department has held that under the circumstances of the case (in which the People on appeal conceded that a conviction for one of the counts was time barred and the Appellate Division dismissed the count) the failure of counsel to raise a dispositive statute of limitations defense did not deny the defendant his right to effective assistance of counsel. Defendant further contends...
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