Prosecutorial Misconduct: Naming Names (Again)
As readers of this blog know, I have long and repeatedly advocated that an effective means for reducing the incidence of prosecutorial misconduct, without having to reverse the conviction — which appellate courts are understandably reluctant to do where there is strong evidence of guilt but improper conduct by the prosecutor — is to name the prosecutor in its decision condemning the misconduct, but affirming the conviction (see and see). Yet, with exceptions, appellate...
read moreProsecutors Will Not Be Disciplined by Their Offices For Misconduct
I strongly urge that you read this excellent (and depressing) article by Joel Rudin detailing the utter failure of three NYC District Attorney’s offices to reprimand assistant DA’s found by courts to have engaged in misconduct: J. Rudin, The Supreme Court Assumes Errant Prosecutors Will Be Disciplined by Their Offices or the Bar: Three Case Studies That Prove That Assumption Wrong (8 Fordham L R 537 [2011]). The article shows how these District Attorney...
read moreNeed Anyone Inform Defendant of The Mandatory Consecutive Nature of Sentence To Be Imposed Pursuant To Plea Bargain?
In People v Belliard (2013 NY Slip Op 00884 [NY 2/12/13]), the Court of Appeals held that Courtsare not required to advise a defendant pleading guilty that it is mandatory that the sentence of imprisonment he will receive as a second felony offender will run consecutively to the undischarged portion of his previously imposed state sentence. With Chief Judge Lippman dissenting, the Court explained that the mandatory nature of the consecutive sentencing does not...
read moreAppellate Divisions Can Order Hearing To Determine If There Was A Strategic Basis For Failure To Raise Issue
In People v Bachert (69 NY2d 593, 600 [1987]), the Court of Appeals held that a motion for writ of error coram nobis is the means in New York to raise claims of ineffective assistance of appellate counsel Such claims focus on appellate counsel’s failure to raise significant and obvious issues while pursuing issues that were clearly and significantly weaker. But it is often difficult to establish that there was no possible strategic basis...
read moreMust Defense Attorneys Guess What Is Not In The Box?
The logical predicate for a requirement that a defendant be precise in framing a defect requiring redress is that the defendant reasonably be aware of such defect. Thus, for example, in considering what a defendant must allege to obtain a suppression hearing, the Court of Appeals has held that a factor in determining the sufficiency of a defendant’s factual allegations is the degree to which the pleadings may reasonably be expected to be precise...
read moreA Shot In The Chest Is Not Necessarily Sufficient To Establish Serious Physical Injury
People v Madera (2013 NY Slip Op 00812 [4th Dept 2/8/2013]), is another case demonstrating how important it is for counsel to read the statutory provisions defining the crime for which a client is charged. As described below, appellate counsel, successfully made a counter-intuitive augment, not made by trial counsel in the motion for a trial order of dismissal, based on the statutory language. Although a shot the chest leaving bullet fragments sounds like...
read more
