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/.
Affidavit of Regularity/Proof of Mailing from DMV is Testimonial Evidence
In People v Darrisaw (2009 NY Slip Op 06992 [4th Dept 10/2/09]), the defendant appealed from a judgment convicting him upon a jury verdict of aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 [3] [a] [ii]). The Court reversed because the convciton was based on an Affidavit of Regularity/Proof of Mailing from the Department of Motor Vehicles, whoch denied the defendat his right to confrontation:...
read moreExpectation of Privacy in Hotel Room Ends at Checkout Time, Even if Guest is in Police Custody at Checkout Time
In People v Kobza (2009 NY Slip Op 06948 [4th Dept 10/02/09]) the Court held that the defendant’s expectation in the privacy of his hotel room expired when he did not check out by check out time because he was in police custody: We reject the contention of defendant that Supreme Court erred in refusing to suppress two incriminating letters that the police found in a hotel room. Defendant had the burden of establishing...
read moreExclusion of Expert Testimony Regarding False Confessions Affirmed
Although counter intuitive, there now exists irrefutable evidence that people falsely confess to having committed serious crimes. Indeed in about a quarter of all wrongful convictions cleared by DNA evidence there had been a false confession (see, Innocence Project -Understand the Causes). Included in this group are cases in which the Fourth Department had affirmed the conviction despite a challenge to the voluntariness of the confession (See, e.g., People v Warney, 299 AD2d 956,...
read moreMore Decisions, More Failures to Renew TOD Motions
The Fourth Department issued decisions on October 2, 2009. In three of the criminal appeals (People v Bean, 2009 NY Slip Op 06947 [4th Dept 10/2/09]; People v Laing, 2009 NY Slip Op 06906 [4th Dept 10/2/09]; People v Parks, 2009 NY Slip Op 06995 [4th Dept 10/2/09] the Court noted that the trial attorney had failed to renew the motion for a trial order of dismissal (TOD motion) as has been required, at...
read moreRemember: Move and Then Move Again
In People v Kolupa (59 AD3d 1134 [4th Dept 2009])the Fourth Department split 3-2 on whether there was sufficient corroboration of unsworn testimony of a 7-year-old to support conviction for attempted rape, criminal sex act 1st degree and sexual abuse in the 1st degree. The purported corroboration was Mr. Kolupa’s statement that he had exposed himself to the boy – a statement that did not mention any touching or physical act. The three judge...
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