One Can’t Waive Indictment After Being Indicted
In People v Spencer (4th Dept 9/30/11) the Appellate Division, Fourth Department, reversed a conviction and vacated a Superior Court Information (SCI) where the defendant pled guilty pursuant to a SCI after he was indicted for a crime arising from the same incident. As the Court explained the waiver of indictment was invalid inasmuch as there is no evidence in the record before us that a local criminal court held him over for the...
read moreFrank Sterling and the Denial of a Motion for DNA Testing
In an earlier post today, I wrote about Mark Christie pled guilty this week to the murder for which an innocent man, Frank Sterling, had served 18 years in prison, prior to his exoneration (see). As I discussed, one of the many reasons it took so long to establish Frank Sterling’s actual innocence is that the trial court denied a motion pursuant to CPL 440.30(1-a), for DNA testing. Then, compounding the problem, the Appellate...
read moreLeave To Appeal Generally Required to Challenge Restitution Order
The Appellate Division, Fourth Department, in People v LaVilla (4th Dept 8/30/11) has again held that an exception to the general rule that cannot be appealed as of right is when the restitution hearing was bifurcated from sentencing: “[a]s a general rule, a defendant may not appeal as of right from a restitution order in a criminal case . . . Here, however, [County C]ourt bifurcated the sentencing proceeding by severing the issue of...
read moreWrongful Convictions and the Exclusion of Expert Testimony on False Confessions
The headline in today’s Rochester Democrat and Chronicle was that Mark Christie had pled guilty to the 1988 murder of Viola Manville. This plea follows the April 28, 2010 vacateur of the 1992 Monroe County murder conviction of Frank Sterling for that very murder. (For a detailed account of the Frank Sterling case, see). As was the case with such other wrongful conviction exonerations in which the Fourth Department had affirmed the wrongful convictions,...
read moreNew Website and Online Forum for Rochester Area Criminal Defense Attorneys
The Monroe County Public Defender’s Office has introduced a new website (see) which, in part, contains links to some of that office’s excellent training materials (see) and to numerous helpful articles on aspects of New York criminal law authored by Jim Eckert (see), a frequent contributor to this blog.Additionally, the website is a portal to the “Defender Discussion Forum”. The forum, is a bulletin board that will allow defense attorneys (criminal and family court)...
read moreLeave Applications Must Raise All Federal Issues Raised on Appeal
Appellate attorneys in drafting an application for leave to appeal the New York Court of Appeals want to highlight the issue or issues most likely to be deemed worth y of the attention of that Court. As former Clerk of the Court, Stuart Cohen explained the issues most likely to warrant a grant of leave toappeal are: 1. Those on which the judicial departments of the Appellate Divisionhave split;2. Those presenting questions of widespread,...
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