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/.
Admission of Preliminary Hearing Testimony Held to Violate Defendant’s Right to Confrontation
Sometimes there are collateral consequences to restrictive rulings of a local court judge at a preliminary hearing limiting the scope of cross-examination of prosecution witnesses. In People v Harvey, 2008 NY Slip Op 10329 [4th Dept 12/31/08] the Fourth Department reversed defendant’s convictions for criminal possession of a weapon in the second degree (Penal Law § 265.03 [former (2)]) and reckless endangerment in the first degree (§ 120.25) because the court erred in admitting...
read moreRape Conviction Overturned for Lack of Specificity
This week, in People v Bennett (2008 NY Slip Op 09811 [2d Dept 12/09/08]), the Second Department overturned a rape conviction when the second-grade victim could only give a nine-month window for the date of the incident. The Court explained that while a per se (nine-month) bar does not apply, a significantly lengthy period is a factor to be considered, with “proportionally heightened scrutiny” given to whether the People’s inability to provide more precise...
read moreSecond Circuit Recognizes Importance of Defendants’ Right To Examine Prosecution Witness’s Racism
In two cases, the Second Circuit Court of Appeals issued rulings emphasizing the rights of defendants to cross-examine prosecution witnesses regarding evidence of their racial or ethnic bias.In Brinson v Walker (— F.3d —-, 2008 WL 4890153 [2nd Cir 11/13/08])the court granted habeas corpus relief and vacated a New York state robbery conviction whee the New York trial judge precluded the black defendant from presenting evidence (both through cross examination and by extrinsic evidence)...
read moreMolineux and Multiple Count Prosecutions
In People v Giles (2008 NY Slip Op 09433 [12/2/08]), the Court of Appeals issued an important decision regarding the application of Molineux. Specifically the Court held that even when evidence of other crimes may be relevant and admissible to some charged counts, the trial court in admitting such evidence is required to give that limiting instructions advising the jury that while the evidence may be relevant to some charges, it must not be...
read morePreservation of Error, Sandoval, and T.O.D. Motions
In People v Hawkins (2008 NY Slip Op 09254 [11/25/08]) the Court of Appeals provided counsel with further guidance as to what is required to preserve errors for review as a matter of law. Unfortunately, as detailed below, the Court’s decision appears to raise as many questions as it answers. The statutory requirements of preservation of error are set forth in Criminal Procedure Law (CPL) 470.05[2], which provides in relevant part: For purposes of...
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