Reversal for Prosecutorial Misconduct Seems Preferable to Reversal for Ineffective Assistance of Counsel

Posted by on January 19, 2016 in Blog | 0 comments

Last week’s post discussed People v Jones (2015 NY Slip Op 09773), in which the Appellate Division, Fourth Department, reversed a conviction in the interest of justice due to numerous acts of prosecutorial misconduct in summation which were egregious, but largely unpreserved by timely objection. That is obviously a great result for Mr. Jones and his appellate attorney (good work, Catherine Josh). And it allows trial counsel to join in celebrating the client’s reversal. But...

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Doctor Who: Expert Testimony in an Eyewitness Identification Case

Posted by on January 11, 2016 in Blog | 2 comments

by Bill Easton Over the last eight years the Court of Appeals has addressed the admissibility of expert testimony in identification cases at least five times.  It is scheduled to revisit the issue yet again in the near future.  (People v McCullough, 126 AD3d 1452 [4th Dept 2015], lv to appeal granted 25 NY3d 1079). During this time, the Second Circuit has also issued a rare full panel decision on the same issue (Young v Conway,...

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Prosecutorial Misconduct and Preservation

Posted by on January 11, 2016 in Blog | 1 comment

As evidenced by the frequency with which prosecutorial misconduct, in summation especially, is not preserved for appeal, many defense attorneys are unclear about what amounts to misconduct.  As a soon-to-be new attorney, I am admittedly no exception.  Of course, some comments are so egregious that their impropriety is unmistakable. In 2000, the late Judge Judith Kaye, then Chief Judge of the Court of Appeals, wrote “Prosecutors play a distinctive role in the search for...

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Unless a defendant is advised of post-release supervision before pleading guilty, the conviction cannot later be counted as a predicate felony.

Posted by on October 20, 2015 in Blog | 1 comment

If a defendant was not advised of the post-release supervision component of his sentence before pleading guilty, it is unconstitutional for a court to consider that conviction for predicate felony purposes — even if the conviction preceded the Catu decision.  At least, this is now true for courts within the First Department. In its 2005 decision, People v Catu, the New York Court of Appeals made clear that post-release supervision is a direct consequence...

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Another successful challenge to denial of Parole Release.

Posted by on June 12, 2015 in Blog | 2 comments

        We’ve discussed this in the prior posts on this site. CLPR Article 78 special proceedings are the means to challenge the denial of release to parole supervision. On June 2nd, Acting Supreme Court Justice John L. Michalski issued a Memorandum and Order vacating the Parole Board’s imposition of a twenty four month hold, and instead imposed a twelve month term effectively ordering the Respondent’s release in the Matter of Caufield...

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