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/.
Request to Consult an Attorney is Not By Itself a Refusal to Take Chemical Breath Test
In People v Smith(2/16/12]) the Court of Appeals reversed a conviction for driving while impaired upon a holding that the trial court erred in permitting the People to introduce evidence that Mr. Smith refused to take a chemical breath test to determine his blood alcohol content when requested to do so by State Troopers. At the scene of his motor vehicle stop, the troopers administered Mr. Smith both Miranda warnings and chemical test warnings...
read moreThe Use of a Peer-to-Peer File Sharing Program and Enhancement Under the Federal Sentence Guidelines
by Mark D. Hosken, Supervisory Assistant Federal Public Defender The United States Sentencing Guidelines (USSG) include enhanced punishment for those individuals convicted of a child pornography offense involving distribution. The greatest enhancement (an increase of five levels) is applied if the offense involved distribution for receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain. [USSG § 2G2.2(b)(3)(B).] What is distribution? Any act, including possession with intent to distribute….,...
read moreProspective Juror’s Knowledge of Defendant’s Reputation Potentially More Important Than Knowledge of the Crime Charged
Do you think it might be wrong to have on the jury someone who has heard of the defendant and ‘knows’ he’s a bad guy? Turns out, you’re probably right. The rule on whether a person can be fair and impartial is different if the prejudice we are worried about is about the defendant rather than the crime. There are different forms of pre-judgement which are attractive to potential jurors. If someone thinks a...
read moreValid Waiver of Right To Appeal Held Not To Encompass Denial of Youthful Offender Status Not Mentioned at Waiver
In People v Anderson ( 2011 NY Slip Op 09364 [4th Dept 12/23/11]), after holding the that there was a valid waiver of appeal, the Appellate Division, Fourth Department held that We agree with defendant, however, that the waiver does not encompass his further contention concerning the denial of his request for youthful offender status. No mention of youthful offender status was made before defendant waived his right to appeal during the plea colloquy....
read moreThe Issuance of an Appearance Ticket Doesn’t Not Justify a Search “Incident to Arrest”
A pre-requisite of a valid search incident to arrest, is an arrest. “If there is no arrest, however, there can be no search incident thereto (see People v Evans, 43 NY2d 160, 165-166; People v Erwin, 42 NY2d 1064, 1065).” People v Kalikow (2011 NY Slip Op 09452[4th Dept 12/23/11]). In, Kalikow, the Fourth Department held that where a police officer merely issued an appearance ticket to defendant for violating a municipal open container...
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