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/.
Counsel’s Options When Proof Is Insufficient To Prove Charged Offense, But Sufficient To Prove Lesser Included Offense
by Jill Paperno, Special Assistant Monroe County Public Defender When you make a TOD motion, if the proof is sufficient to sustain a lesser included charge, the court may not grant the TOD. (CPL 290.10 [“the court may, except as provided…upon motion of the defendant, (a) issue a ‘trial order of dismissal,’ dismissing any count of an indictment upon the ground that the trial evidence is not legally sufficient to establish the offense charged therein...
read morePeople v Kent – Important Child Pornography decision holds that viewing is not procurement, and “cache files” are not knowing possession
Today’s Court of Appeals decision (People v Kent #70, 5/8/12) has two very important components. First – proving a defendant has “cache files” on his computer isn’t enough to prove that he knew he had such files saved on his computer.Second – “merely viewing” child pornography is not possession or procurement. Cache files are created when a user visits a website. The computer typically stores that page on the computer. That way it doesn’t...
read moreLicence Restored Where Video of Driver After Arrest Shows No Basis for Driving While Intoxicated and Driving While Impaired Charges
In Matter of Fermin-Perea v. Swarts (2012 NY Slip Op 03514 [First Dept 5/3/12], by a 3-2 vote the Appellate Division, First Department granted an Article 78 petition nullifying the DMV’s revocation of a license after a refusal to submit to a chemical test, because the video of the defendant/Petitioner taken 25 minutes after his arrest did not display any indicia of impairment or intoxication. The majority explained The arresting officer’s refusal report, admitted...
read moreSORA Registration Requirement Need Not Be Challenged Via Article 78
The Court of Appeals today, in People v Liden (#67) determined that an Article 78 proceeding is not the only valid way to challenge a determination by the Board of Examiners of Sex Offenders that he must register as a sex offender. Ordinarily such a determination is a simple matter of reading the statute. If the defendant is convicted of certain listed crimes, he must register as a sex offender. For out of state...
read moreThe Law of Lesser Included Offenses
How would you like to live in a world where all testimony helpful to you was believed completely, all testimony harmful to you was discredited, and you were allowed to draw conclusions from the evidence favorable to you so long as there was a valid line of reasoning and permissible inferences which could lead a reasonable juror to the conclusion you were proposing? That world is called the “Charge Conference”. When the defense requests...
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