ALLOCATION OF DECISION-MAKING AS TO THE EXERCISE OF A CLIENT’S RIGHT TO TESTIFY AT THE GRAND JURY
byJill Paperno, Second Assistant Monroe County Public Defender and author of Representing the Accused: A Practical Guide to Criminal Defense As described in an earlier post, the law provides guidance as to which decisions are made by a client and which are made by the defense attorney. Decisions that are considered fundamental – generally those that are granted to a defendant by the Constitution, or cases interpreting the Constitution – are to be made by...
read moreALLOCATION OF DECISION-MAKING BETWEEN CLIENT AND COUNSEL
ByJill Paperno and Brian Shiffrin I. DEFENDANTS REPRESENTED COUNSEL ONLY RETAIN DECISION-MAKING AUTHORITY AS TO FUNDAMENTAL DECISIONS Courts divide the decision-making between counsel and client into two categories – fundamental and strategic. If a decision is “fundamental” it is reserved to the defendant. If it is strategic, it is reserved to the attorney. People v. Colville 20 N.Y.3d 20. A defendant having accepted the assistance of counsel, retains authority only over certain fundamental...
read moreBasics of Grand Jury Practice In New York
by Jill Paperno, Second Assistant Monroe County Public Defender and author of Representing the Accused: A Practical Guide to Criminal Defense Article 190 of the Criminal Procedure Law sets forth the rules relating to grand jury presentations. As defined in Section 190.05 of the Criminal Procedure Law, A grand jury is a body consisting of not less than sixteen nor more than twenty-three persons, impaneled by a superior court and constituting a part...
read morePeople v Oddone – Three Significant Evidentiary Rulings in a Single Decision
by Jill Paperno, Second Assistant Monroe County Public Defender The Court of Appeals reversed a conviction of Manslaughter in the First Degree on December 12, 2013 in People v. Oddone. The defendant, Mr. Oddone, originally charged with murder, was convicted of manslaughter based on his choking of another man in a bar. Oddone had been dancing with a woman on a table in a bar. The bouncer, Reister, told him to get off. When...
read moreFailure to State The Obvious Might Constitute Ineffective Assistance of Counsel
byJames Eckert, Assistant Monroe County Public Defender When dealing with a Hearing Court who knows what the law is, there is a real temptation to simply ask the right questions knowing that the judge knows what the argument is as a result. The problem is that appellate courts look for counsel to conclude the hearing by saying “the fact that the police didn’t have a description and didn’t have a report of a crime...
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