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/.
Penal Law 70.10(1)(c): clarity takes a holiday
To qualify for an enhanced sentence as a persistent felony offender, a defendant must have been previously convicted of two or more felonies. Determining whether one has been previously convicted of two or more felonies sounds simple, right? Snatching obtuseness from the jaws of clarity, the Legislature has given us Penal Law 70.10(1)(c), which provides that: “For the purpose of determining whether a person has two or more previous felony convictions, two or more...
read moreTime running out; exercising the right to testify before the grand jury
If, as in our jurisdiction, the District Attorney opts for a lickety-split indictment procedure in order to avoid being required to proceed with preliminary hearings, defendants’ rights to testify before the grand jury may be compromised. On the other hand, there is an apparent anomaly in CPL Article 190 that may be employed to protect the defendant’s right to testify. The scenario goes something like this: Defendant is arraigned on a felony in local...
read morePlain logic loses again.
Where the appellate court finds the sentence imposed to have been illegal and remits for vacatur or resentence, who gets to pick which relief is imposed? In People v Maliszewski (2009 NY Slip Op 6376, decided Sept 3, 2009), the Court of Appeals held that it was the sentencing court, not the defendant. In 2006, County Court agreed that it would sentence Mr. Maliszewski to 2 to 4 years upon his conviction for burglary,...
read moreMaybe TOD Motions Are Not Always Required
As you know, it has long been held that counsel fails to preserve for appellate review legal insufficiency claims when he has failed to raise the issue in a specific TOD motion (see, People v Gray, 86 NY2d 10 [1995]). However, CPL 290.10, which governs TOD motions, gives courts the authority to grant TODs only when the evidence is not only legally insufficient as to the charged offense but also insufficient to support a...
read moreDeconstructing McDaniel – Ineffective Assistance and Failure to Make A Specific Motion for a Trial Order of Dismissal
In People v McDaniel (54 AD3d 577 [1st Dept 2008]) the First Department divided 3-2 as to whether there was sufficient proof of the display of a weapon to constitute Robbery in the First Degree. Apparently, the issue which divided the Appellate Division was not clearly preserved in a motion for a trial order of dismissal. Consequently, the issue before the Court of Appeals was whether it was ineffective assistance of counsel to fail...
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