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/.
Consecutive Sentences on Misdemeanors
by James EckertAssistant Monroe County Public Defemder I previously dealt with consecutive sentences, which are not permitted where a single act or omission represents two separate crimes, or where one offense also represents a material element of another Penal Law Section 70.25(2). In either case, the sentences on two such offenses must be concurrent. The only exception, permitting consecutive sentences, is for wearing a soft body vest under PL 270.20. There is a broader...
read moreDue Process and SORA Risk Level Assesment
In People v Hackett (2011 NY Slip Op 08061 [4th Dept 11/10/11]), the Appellate Division, Fourth Department, vacated defendant’s risk level determination, and remitted the matter to County Court for a new risk level determination, where the assessment was based, in part, on factors that had neither been selected on the risk assessment instrument nor raised by the People at the hearing. The Court held that the court violated his due process rights by...
read moreAn Idea That Might Get Prosecutors To Stop Asking Defendants If The Prosecution Witnesses Lied
Parents and teachers know you’re more likely to achieve desired behaviors if there are consequences for disobedience. Appellate courts, when dealing with improper conduct by prosecutors, seem unaware of this simple rule. So they repeatedly criticize prosecutorial misconduct in appellate decisions which affirm the conviction. Then they wonder why trial attorneys persist in the behavior which resulted in the conviction and then the affirmance. For example, in People v Washington (2011 NY Slip Op...
read moreAre Calibration and Simulator Solution Certificates Used in Verifying the Accuracy of the Breathalyzer Test Testimonial?
In Melendez-Diaz v Massachusetts (129 S.Ct. 2527 [2009]), the Supreme Court held that it violate the right of confrontation for a prosecutor to submit a chemical drug test report without the testimony of a person who performed the test subject to confrontation. Thus, the admission at trial of three sworn “certificates of analysis” or affidavits showing the results of the forensic analysis performed on samples of the seized white powder was reversible error where...
read moreFourth Department – In SORA Hearing, Addition of Points Sua Sponte Violates Due Process
While the remedy was merely remand for a new hearing, this decision could prove important if it stops a court from assessing points at the SORA hearing. It’s also an important reminder that SORA is a contested process where the People bear the burden. SUPREME COURT OF THE STATE OF NEW YORKAppellate Division, Fourth Judicial Department1236 KA 11-00285 PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ. THE PEOPLE OF THE STATE OF NEW...
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