Appellate Divisions Can Order Hearing To Determine If There Was A Strategic Basis For Failure To Raise Issue
In People v Bachert (69 NY2d 593, 600 [1987]), the Court of Appeals held that a motion for writ of error coram nobis is the means in New York to raise claims of ineffective assistance of appellate counsel Such claims focus on appellate counsel’s failure to raise significant and obvious issues while pursuing issues that were clearly and significantly weaker. But it is often difficult to establish that there was no possible strategic basis...
read moreMust Defense Attorneys Guess What Is Not In The Box?
The logical predicate for a requirement that a defendant be precise in framing a defect requiring redress is that the defendant reasonably be aware of such defect. Thus, for example, in considering what a defendant must allege to obtain a suppression hearing, the Court of Appeals has held that a factor in determining the sufficiency of a defendant’s factual allegations is the degree to which the pleadings may reasonably be expected to be precise...
read moreA Shot In The Chest Is Not Necessarily Sufficient To Establish Serious Physical Injury
People v Madera (2013 NY Slip Op 00812 [4th Dept 2/8/2013]), is another case demonstrating how important it is for counsel to read the statutory provisions defining the crime for which a client is charged. As described below, appellate counsel, successfully made a counter-intuitive augment, not made by trial counsel in the motion for a trial order of dismissal, based on the statutory language. Although a shot the chest leaving bullet fragments sounds like...
read moreTiming Matters and Reading Is Essential
If there is one lesson that I have learned in more than three decades of practicing law, is that one must not assume anything about a case. Just because the indictment charges a particular crime does not mean that the conduct alleged, if proved, established the actual elements of the crime. A defense attorney cannot assume that the prosecutor read the statute in the light most favorable to your client. Rather, in every case...
read moreWhat Did the Police Know and When Did They Know It
Pursuant to People v DeBour (40 NY2d 210) and People v Hollman (79 NY2d 181), an analysis of the lawfulness of police action for purposes of determining a suppression motion requires the court to engage in the legal equivalent of the filming of a stop action animation. Each action by the police must be separately analyzed in the context of what the police know at the time of that act. Thus, defense counsel in...
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