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/.
Ex Post Facto Protection Remains in a Post-Booker Sentencing World
by Mark D. Hosken, Supervisory Assistant Federal Public Defender, Western District of New York The Ex Post Facto clause (U.S. Const. Art. I, §9) prohibits laws that increase the punishment for a crime after its commission. Garner v. Jones, 529 U.S. 244, 249 (2000). That protection is extended to the application of the United States Sentencing Guidelines. See U.S.S.G. §1B1.11(b)(1). Section 1B1.11 directs the application of an earlier guideline manual if application of a...
read moreMissing jurors
Nobody gives Parker warnings to the jury. No judge says to the jury “if you fail to appear, the trial will continue without you”. If they did, then the jury might feel free to stay home instead of being afraid someone would come looking for them. So what do you do if parts of your jury don’t show up when they’re supposed to? CPL 270.35(2)(a) is one of the better statutes in terms of...
read moreRepugnant Verdicts
Juries are permitted to deliver stupid verdicts. They can believe the wrong people, accept the ridiculous while rejecting the obviously true. They cannot, however, square a circle. So some verdicts will arguably be repugnant. A verdict is repugnant when it is logically inconsistent, not when it's factually stupid. In other words, a combination of convictions and acquittals will be legally unacceptable when, no matter what evidence the jury might have accepted or rejected, this...
read morePeople v Perkins – Court of Appeals – June 29
The defendant physically resisted appearing in a lineup. Police then took a photograph of his face, telling him it was necessary for a “prisoner movement slip”, and they did the same for the fillers. The complainant picked the defendant from this “lineup”, as he had done from a prior photo array. Because lineup identifications are admissible, and photo arrays are not, the prosecution argued that the defendant improperly denied them useful evidence, and therefore...
read morePeople v King – Court of Appeals – June 29
County court had ruled that police had no basis to stop the defendant, and that it could not be concluded that he stopped voluntarily. County court nonetheless refused to suppress the evidence obtained from the stop. The Court of Appeals reversed and suppressed. All that is surprising is that three judges dissented from this two paragraph opinion. The dissenters objected that, since the defendant and a companion were on separate motorcycles, when police legitimately...
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