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/.
Second Circuit Tries to Reconcile Strickland and Baldi Standards
On April 12, 2010, by a 2-1 vote the Court of Appeals for the Second Circuit Court in Rosario v Ercole (__F3d_ [2d Cir 4/12/10]) found that counsel provided ineffective assistance under the Strickland standard, but that the New York’s holding to the contrary was not unreasonable. Both the majority and dissent discuss issues regarding the application of the New York and federal standards for ineffectiveness of counsel. The majority held that despite the...
read moreCourt of Appeals Apparently Recognizes Inferential Objections
In the past the Court of Appeals has held “a party’s failure to specify the basis for a general objection renders the argument unpreserved for [that] Court’s review (see, People v Dien, 77 NY2d 885, 886; People v Tevaha, 84 NY2d 879; People v Ford, 69 NY2d 775, 776).” People v Tonge, 93 N.2d 838, 839 (1999). So one might think that where counsel failed to place any objection on the record the issue...
read moreNew York and the Second Circuit Courts of Appeal Differ On The Test For Determining Ineffective Assistance of Appellate Counsel
What is the standard for determining whether appellate counsel provided effective assistance? In 2009, the New York Court of Appeals in People v Borrell (2009 NY Slip Op 03589, 12 NY3d 365[2009] held that the test if not whether appellate counsel failed to raise a potentially winning and potentially dispositive issue, but whether the failure of appellate counsel to raise such an issue deprived defendant of the advocacy to which he was constitutionally entitled....
read moreTiming Is (Nearly) Everything – If You Want A Missing Witness Charge
A reminder: In 1986 the Court of Appeals held that a party seeking a missing witness instruction has the burden of making the request “as soon as practicable” (People v Gonzalez, 68 NY2d 424, 428 [1986]). So , if an attorney doesn’t not make a reuesst for such a chargeas early as practicable a coourt may proeprly deny the request,e ven if the requirements of the charge are otherwise met. In People v Carr...
read moreStrip Searching Everyone At a Search Warrant Execution
Today in People v Mothersell (2010 NY Slip Op 02677 [NY [4/1/10]) the Court of Appeals struck down the use of a search warrant which permitted the search of “all persons present” to justify ‘visual’ body cavity searches (I think this means the search was limited to visible body cavities) of persons at the scene of the search warrants execution who were not arrested and were searched solely based on the search warrant. It...
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