Fourth Department Decisions Issued 11/9/2007
People v Adams, 2007 NY Slip Op 08571 [4th Dept 11/09/07] – holding that the court erred in increasing defendant’s sentence from concurrent to consecutive terms after he refused to sign the no-contact order of protection. That “increase cannot be justified under sentencing procedures nor supported under the guise of punishment for contempt of court” (People v Culpepper, 33 NY2d 837, 838, cert denied 417 US 916). However, this decision is also a reminder...
read moreMust IAC Claims Be Preserved?
In People v Jones, (55 NY2d 771 [1981]), the Court of Appeals held that claims of ineffective assistance of counsel (IAC) may be raised for the first time on appeal. A contrary holding would penalize a defendant who received ineffective assistance for the failure of the deficient counsel to preserve the issue of ineffectiveness. Since few ineffective attorneys are likely to preserve the issue of their ineffectiveness, virtually all IAC claims (including those with...
read moreAppellate Review of Bargained for Sentences
In its November decisions, the Appellate Division, Fourth Department twice (here and here) held that Where, as here, a “defendant effects a plea bargain and receives the precise sentence that was promised, he should not later be heard to complain that he received what he bargained for” (People v Chambers, 123 AD2d 270, 270; see People v Dixon, 38 AD3d 1242). Considering that the Court of Appeals in People v Thompson, 60 NY2d 513...
read moreEd Nowak — Appellate Superstar
Its been two week since Ed Nowak has announced his plans to retire after serving thirty years as the Monroe County Public Defender. Since then numerous people have expressed to me their appreciation of Ed’s impressive accomplishments as Public Defender. Many have referenced Ed’s ability to attract and keep highly qualified attorneys and support staff dedicated to providing high quality representation to our clients. Others have focused their comments on Ed’s contributions, both on...
read moreIt’s Ineffective To Not Raise Claims of Ineffectiveness
t a recent CLE on Appellate Ethics the question was raised as to whether it was a good use of appellate counsel’s time to raise claims of ineffective assistance of counsel (IAC), given the small number of reversals on that ground. I resisted the temptation to answer that, using that logic and given the small percentage of reversals on any issue, perhaps it is a waste of time for an attorney to work on...
read more
