If It Is Not In the Stipulated Record It Is Not Before The Appellate Court
In a reminder as to the importance of including key documents in the stipulated record on appeal, the Appellate Division, Fourth Department, in People v Scott (2012 NY Slip Op 01991 [4th Dept 3/16/12]), dismissed a People’ appeal which sought to challenge the lower court’s dismissal of an indictment pursuant to CPL 30.30, where the record included the lower court’s decision, but failed to include the judgment or order dismissing the indictment. As the...
read moreOrder to Obtain DNA Doesn’t Authorize Police To Use Taser to Acquire DNA
Confronted by the police who had an order to obtain his DNA, Ryan Smith reportedly told the police “You are gonna have to Taser me if you want my DNA.” Ans so the police proceeded to use a taser to acquire Mr. Smith’s DNA. On appeal Mr. Smith challenged both the legality of the order and the use of the taser. In a 4-1 decision (People v Smith,2012 NY Slip Op 01896 (3/16/2012) the...
read moreMolineux is Alive and Well and Coming to a Courtroom Near You
In People v Cass (#28 decided 2/16/12) the defendant’s claim of extreme emotional disturbance was undercut by the fact that he’d allegedly committed a nearly identical murder 14 months earlier. In both cases he claimed that he was surprised by men making sexual advances to him and he “just lost it”. Though in the instant case Cass’ belt was used to drag the deceased and in the prior case it was used to cause...
read moreRequest to Consult an Attorney is Not By Itself a Refusal to Take Chemical Breath Test
In People v Smith(2/16/12]) the Court of Appeals reversed a conviction for driving while impaired upon a holding that the trial court erred in permitting the People to introduce evidence that Mr. Smith refused to take a chemical breath test to determine his blood alcohol content when requested to do so by State Troopers. At the scene of his motor vehicle stop, the troopers administered Mr. Smith both Miranda warnings and chemical test warnings...
read moreThe Use of a Peer-to-Peer File Sharing Program and Enhancement Under the Federal Sentence Guidelines
by Mark D. Hosken, Supervisory Assistant Federal Public Defender The United States Sentencing Guidelines (USSG) include enhanced punishment for those individuals convicted of a child pornography offense involving distribution. The greatest enhancement (an increase of five levels) is applied if the offense involved distribution for receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain. [USSG ยง 2G2.2(b)(3)(B).] What is distribution? Any act, including possession with intent to distribute….,...
read moreProspective Juror’s Knowledge of Defendant’s Reputation Potentially More Important Than Knowledge of the Crime Charged
Do you think it might be wrong to have on the jury someone who has heard of the defendant and ‘knows’ he’s a bad guy? Turns out, you’re probably right. The rule on whether a person can be fair and impartial is different if the prejudice we are worried about is about the defendant rather than the crime. There are different forms of pre-judgement which are attractive to potential jurors. If someone thinks a...
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