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/.
Can a Challenge to an Earlier Invalid Sentence Impact Predicate Status for Sentencing on a Subsequent Felony?
byJim Eckert, Esq.Assistant Monroe County Public Defender Sometimes it doesn’t help if the other side can see why you’re doing what you’re doing. Is it possible for a defendant to remove a predicate conviction by challenging an invalid sentence and demanding to be resentenced? At issue before the Court of Appeals recently was the question whether a defendant could – by sacrificing an illegally lenient sentence on a prior conviction – remove a predicate...
read moreTestimonial Forensic Reports Admissible Only If The Scientist Who Did The Testing Testifies
In Melendez-Diaz v Massachusetts (129 S.Ct. 2527 [June 25, 2009]), the United States Supreme Court held that the Confrontation Clause requires that in order for the prosecution to be able to introduce a forensic laboratory report at trial, the prosecutor must present a live witness to testify to the truth of the statements made in the report subject to cross-examination. Today, in Bullcoming v New Mexico (see _US_ [6/23/11]), the Court decided the related...
read moreConviction After Trial Does Not Cure Defective Grand Jury Instructions
The provision in CPL § 210.30(6) authorizing denial of appellate review of a motion to dismiss an indictment for insufficiency of grand jury minutes “from an ensuing judgment of conviction based upon legally sufficient trial evidence” does not preclude appellate review of defective grand jury procedures. Thus, in People v Calkins (2011 NY Slip Op 05314 [4th Dept 6/17/11]) the Appellate Division Fourth Department held that deficient instructions to the grand jury required reversal...
read moreAnother Reason To Not Smoke
In People v Lopez (16 NY3d 375 [2/22/11]) the Court of Appeals held that an officer who wishes to question a person in police custody about an unrelated matter must make a reasonable inquiry concerning the defendant’s representational status when the circumstances indicate that there is a probable likelihood that an attorney has entered the custodial matter, and the accused is actually represented on the custodial charge. (see). But there is a limit to...
read moreAppellate Courts Might Not Be Able to Affirm Decisions With Right Result But For Wrong Reason
In People v LaFontaine (92 NY2d 470 [1998]) the Court of Appeals held that the Appellate Divisions cannot affirm a lower court’s decision for reasons which were rejected by that lower court. The lower court in LaFontaine had refused to suppress the drugs in question, but for the wrong reason, rejecting the correct reason. The Appellate Division affirmed, basing its holding on the correct rationale, which the lower court had rejected. The Court of...
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