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Must Defense Attorneys Guess What Is Not In The Box?

Posted by on February 10, 2013 in Blog | 0 comments

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...

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A Shot In The Chest Is Not Necessarily Sufficient To Establish Serious Physical Injury

Posted by on February 9, 2013 in Blog | 0 comments

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...

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Timing Matters and Reading Is Essential

Posted by on February 9, 2013 in Blog | 0 comments

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...

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What Did the Police Know and When Did They Know It

Posted by on February 9, 2013 in Blog | 0 comments

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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Location, Location, Location

Posted by on February 2, 2013 in Blog | 0 comments

As with real estate, the location of the arrest or alleged criminal offense can be determinative as to the disposition of the case. Thus, as demonstrated by the cases discussed below, it is critical that counsel be aware of such location and the potential impact that might have on the charges. For instance, instance in  People v. Cornell (17 AD3d 1010 [4th Dept 2005]), the defendant appealed from a judgment of Ontario County Court...

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