People v Kent – Important Child Pornography decision holds that viewing is not procurement, and “cache files” are not knowing possession
Today’s Court of Appeals decision (People v Kent #70, 5/8/12) has two very important components. First – proving a defendant has “cache files” on his computer isn’t enough to prove that he knew he had such files saved on his computer.Second – “merely viewing” child pornography is not possession or procurement. Cache files are created when a user visits a website. The computer typically stores that page on the computer. That way it doesn’t...
read moreLicence Restored Where Video of Driver After Arrest Shows No Basis for Driving While Intoxicated and Driving While Impaired Charges
In Matter of Fermin-Perea v. Swarts (2012 NY Slip Op 03514 [First Dept 5/3/12], by a 3-2 vote the Appellate Division, First Department granted an Article 78 petition nullifying the DMV’s revocation of a license after a refusal to submit to a chemical test, because the video of the defendant/Petitioner taken 25 minutes after his arrest did not display any indicia of impairment or intoxication. The majority explained The arresting officer’s refusal report, admitted...
read moreSORA Registration Requirement Need Not Be Challenged Via Article 78
The Court of Appeals today, in People v Liden (#67) determined that an Article 78 proceeding is not the only valid way to challenge a determination by the Board of Examiners of Sex Offenders that he must register as a sex offender. Ordinarily such a determination is a simple matter of reading the statute. If the defendant is convicted of certain listed crimes, he must register as a sex offender. For out of state...
read moreThe Law of Lesser Included Offenses
How would you like to live in a world where all testimony helpful to you was believed completely, all testimony harmful to you was discredited, and you were allowed to draw conclusions from the evidence favorable to you so long as there was a valid line of reasoning and permissible inferences which could lead a reasonable juror to the conclusion you were proposing? That world is called the “Charge Conference”. When the defense requests...
read moreCourt of Appeals Finds Failure to Object to Prosecutor’s Improper Summation Constituted Ineffective Assistance of Counsel
byJill Paperno, Special Assistant Monroe County Public Defender In a very important decision People v Fisher (2012 NY Slip Op 02416 [4/3/12]) the Court of Appeals, by a 6-1 vote, reversed convictions for various sex offenses and ordered a new trial upon a finding that the defendant’s trial attorney rendered ineffective assistance of counsel by failing to object to the prosecutor’s summation was egregiously improper and there was no evident strategic basis for counsel’s...
read moreSome Errors In Content and Service Of a Notice Of Appeal May Be Waived Or Excused
CPL 60.10 (a) provides that A party seeking to appeal from a judgment or a sentence must within thirty days after imposition of the sentence or, as the case may be, within thirty days after service upon such party of a copy of an order not included in a judgment, file with the clerk of the criminal court in which such sentence was imposed or in which such order was entered a written notice...
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