Timing Matters and Reading Is Essential
If there is one lesson that I have learned in more than three decades of practicing law, is that one must not assume anything about a case. Just because the indictment charges a particular crime does not mean that the conduct alleged, if proved, established the actual elements of the crime. A defense attorney cannot assume that the prosecutor read the statute in the light most favorable to your client. Rather, in every case...
read moreWhat Did the Police Know and When Did They Know It
Pursuant to People v DeBour (40 NY2d 210) and People v Hollman (79 NY2d 181), an analysis of the lawfulness of police action for purposes of determining a suppression motion requires the court to engage in the legal equivalent of the filming of a stop action animation. Each action by the police must be separately analyzed in the context of what the police know at the time of that act. Thus, defense counsel in...
read moreLocation, Location, Location
As with real estate, the location of the arrest or alleged criminal offense can be determinative as to the disposition of the case. Thus, as demonstrated by the cases discussed below, it is critical that counsel be aware of such location and the potential impact that might have on the charges. For instance, instance in People v. Cornell (17 AD3d 1010 [4th Dept 2005]), the defendant appealed from a judgment of Ontario County Court...
read moreHuge Difference Between Federal and New York Law Regarding The Significance of Flight
In Illinois v Wardlow (528 US 119 [2000]), the United States Supreme Court, by a 5-4 vote, held that a person in a high crime area fleeing at the sight of police is, by itself, sufficient to create reasonable suspicion, under the Fourth Amendment to the United States Constitution. New York courts have refused to adopt Wardlow, in determining the significance of flight in determining whether reasonable suspicion existed justifying police action under Article...
read moreLitigating Consent to Search In New York
by Jill PapernoSecond Assistant Monroe County Public Defender In every search case where police claim the defendant consented to the search, there are two issues that must be addressed. We often recognize the former – whether the consent was genuine consent rather than acquiescence to authority. But the second issue that must be considered is whether the police had the lawful authority to request consent. So even if a defendant genuinely consented to a...
read moreRepresenting the Accused: A Practical Guide to Criminal Defense
Readers of this blog know that Jill Paperno, the Second Assistant Monroe County Public Defender, is a frequent contributor. Jill’s posts typically provide practical advice to defense attorneys on how to defend a particular type of case (see or see or see) or how to deal with a trial or evidentiary issue (see or see). Jill has recently authored a book, Representing the Accused: A Practical Guide to Criminal Defense (Thomson Reuters Westlaw), which...
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