In addition to maintaining this blog on its website, ETKS has long-maintained a separate blog entitled “New York Criminal Defense,” accessible at http://newyorkcriminaldefense.blogspot.com/.
Surreptitiousness is an element of Unlawful Surveillance
Penal Law 250.45 contains four subdivisions describing four different ways a defendant may engage in Unlawful Surveillance in the Second Degree. Although easily overlooked, each subdivision of the statute includes a requirement that the surveillance in question be done surreptitiously. In People v Schreier, 22 NY3d 494 [2014], the Court made clear that surreptitiousness is a separate and distinct element from whether the recording was done without the subject’s knowledge or consent, and...
read moreCustodial Interviews By Child Protective Workers and Miranda
A common practice after the arrest after an arrest for child sex crimes is for a Child Protective Services (CPS) Investigator to go the jail to interview the suspect regarding a CPS investigation of the same incident underlying the suspect’s arrest. In many cases the CPS Investigator does not read the suspect Miranda warnings or obtain a Miranda waiver before conducting these custodial interrogations. The ostensible rationale is that the CPS Investigators are...
read moreNew York State’s Affirmative Defenses: Legitimate Tools for the Defense or Traps for the Unwary?
Last month, one of our clients had his murder conviction reversed by the Appellate Division, Fourth Department, after the trial court belatedly charged the affirmative defense of renunciation over objection (People v Brewer, 2014 WL 2782143, __ AD3d __ [4th Dept June 20, 2014]). The court recognized the general rule that a court may not charge an affirmative defense over a defendant’s objection, and acknowledged that the Third Department had adopted a rule that...
read moreThe People’s failure to disclose civil allegations against a police witness may still constitute a Brady violation under circumstances different than those in People v. Garrett.
by Danielle Wild, 2015 J.D. Candidate at Syracuse University College of Law and Intern at Easton Thompson Kasperek Shiffrin LLP Yesterday, the New York Court of Appeals decided People v. Garrett, holding the People did not commit a Brady violation when they failed to disclose that a federal civil action had been brought against one of their police witnesses. Mark Garrett was convicted after a trial by jury of two counts of murder in the...
read moreIpads and apps in your legal practice
by Jill Paperno, author of Representing the Accused: A Practical Guide to Criminal Defense As the Supreme Court recognized this week in Riley v. California, 2014 WL 2864483, technology is an inescapable component of our daily lives. In Riley, the Court answered the question of whether warrants are required before police can search cell phones – and the answer was yes (with exceptions for exigent circumstances). Justice Roberts, who wrote for the majority, stated,...
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