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 you hear me now?
On 12/15/09 in People v Wrotten (a name that works), the Court of Appeals, relying on People v Cintron (75 NY2d 249 [1990]) held that permitting an adult complainant living in another state to testify via real-time, two-way video after finding that because of age and poor health he was unable to travel to New York to attend court was within the trial court’s inherent powers under Judiciary Law § 2-b, absent any specific...
read moreTen Years After – DNA and delayed prosecution
Extending the ability to belatedly prosecute cases where defendants are identifiable by DNA only, in People v. Ramon Ramos (12/15/09) the Court of Appeals held that “The prosecution was not barred by the five-year statute of limitations pursuant to CPL 30.10(2)(b). Although the indictment was nearly 10 years after the incident, defendant’s whereabouts were ‘continuously unknown and continuously unascertainable,’ despite the reasonable diligence of the detectives assigned to the case, until his DNA profile...
read more“The People are fully aware of their Brady obligations and will comply with the same.”
Don’t bet on it. Many of the same prosecutors who offer this rote recitation meant to placate the defendant and the court, go on to demonstrate an affirmative unfamiliarity with their Brady obligations. The problem many be one of semantics. “Brady material” has become a shorthand reference for “those materials required to be disclosed under Brady and its progeny.” If “Brady material” refers to only those items described in the Brady decision, such a...
read moreBrady and pre-trial disclosure
Some prosecutors argue (without citation to any authority, because there is none) that Brady material not contained in a document memorialized by a witness himself (such as the witness’s grand jury testimony or statements to the prosecutor) need not be disclosed prior to the witness’s testimony at trial. In United States v. Sablan & Guerrero, 2009 WL 3379011 (E.D. Cal. 2009), a recent federal homicide prosecution, the defendants requested pretrial discovery of just such...
read moreObjection Not Required Where Prosecution Switches Theories
In People v Gunther (__AD3d__, 2009 NY Slip Op 08656 [11/20/09]) the Fourth Department re-affirmed the rule that a person may not be convicted of a crime based upon a theory different from that charged in the indictment. In Gunther, the defendant was charged with Sex Abuse in the First Degree. for allegedly touching the complainant’s vagina with his penis. However, the testimony was that the defendant touched the complainant’s buttocks and leg and...
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