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/.
Failure to Raise Dispositive Statute of Limitations Defense Will Not Always Result in Finding of Ineffective Assistance of Counsel
In People v Wise 2008 NY Slip Op 02264 (3/14/2008), the Fourth Department has held that under the circumstances of the case (in which the People on appeal conceded that a conviction for one of the counts was time barred and the Appellate Division dismissed the count) the failure of counsel to raise a dispositive statute of limitations defense did not deny the defendant his right to effective assistance of counsel. Defendant further contends...
read moreUseful Molineux Holding
People v Pittman 2008 NY Slip Op 02236 (3/14/2008) In a case involving an attempted murder of a police officer, a divided Court issued an excellent Molineux holding. First the Court held that evidence of a prior possession of a weapon was not “‘sufficiently unique to be probative on the issue of identity’ (People v Beam, 57 NY2d 241, 252).” Next it held that the evidence was not probative on the issue of motive...
read moreRequirements and Limits on Ordering of Restitution
Two helpful decisions on restitition. People v Maliszewski 2008 NY Slip Op 0223 (3/14/2008) is one decision with two good holdings regarding the imposition of restitution. First, the Court held that We agree with defendant that the court erred in enhancing his sentence of incarceration based upon his failure to pay restitution arising from previous convictions. “Restitution may be based only on the offense for which a defendant was convicted, as well as any...
read moreStrict Construction of Requirement of Notice of Right To Testify at Grand Jury
People v Pattison 2008 NY Slip Op 02230 (3/14/2008) Defendant further contends that County Court erred in denying his motion to dismiss the indictment based on the violation of his right to testify before the grand jury without conducting a hearing. We agree with defendant that a hearing is required. It is undisputed that, pursuant to CPL 190.50 (5) (a), defendant’s attorney served the People with written notice of defendant’s intention to testify before...
read moreWaiver of Appeal Must Make Clear that Right to Appeal Isn’t Forfeited by Guilty Plea
People v Vega 2008 NY Slip Op 02250 (3/14/2008) The Fourth Department holds that a single inquiry to a defendant which fails to make clear that the loss of the right to appeal is not an automatic consequence of a guilty plea is insufficient to demonstrate a knowing and intelligent waiver of appeal: we agree with defendant that his waiver of the right to appeal is invalid (see generally People v Lopez, 6 NY3d...
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