You Can’t Go Your Own Way – The Deliberating Jury
The CPL requirement that a deliberating jury be “continuously kept together” (CPL 310.10[1]) has had its ups and downs over the last twenty years. People v Coons (75 NY2d 796 [1990]) determined that the failure of the trial court to keep a deliberating jury together was a mode of proceeding error, a category of error which cannot be waived and requires no objection to present an error of law to the Court of Appeals....
read moreWhat Should Asssigned Appellate Counsel Do When the Only Issues Risk Worse Outcomes for the Client?
Assigned appellate counsel, who upon a review of the record conclude that there are no non-frivolous issues, may move to be relieved of the assignment (People v Crawford, 71 AD2d 38). As I asked in a post in 2008, what do you do when the only non-frivolous issue is one that could hurt your client? For example, what if the sentence imposed was unlawfully short? Does an attorney have to file a brief challenging...
read moreBrady v Maryland – Outline of leading cases applying Brady rule
BRADY OUTLINE (March 23, 2011) by Jill Paperno, Special Assistant Monroe County Public Defender BRADY V. MARYLAND, 373 U.S.83 – Turnover of information is a requirement of 14th Amendment due process “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” nb...
read moreImportant Decision on 30.30 Motions and Preservation of Claim
byDrew R. DuBrin, Special Assistant Monroe County Public Defender The Court of Appeals has just decided an important decision on what a defendant must do to preserve his claim that a period of unreadiness is not excludable from the 30.30 calculation. As you know, in moving to dismiss on CPL 30.30 grounds, the defendant bears the burden of alleging in her motion papers a period of excessive pre-readiness and/or post-readiness delay . If the...
read moreCertiorari Petition Filed in People v Battles
In December 2010 I wrote about the en banc decision of the Second Department in Portalatin v. Graham (624 F3d 69 [2d Cir 10/18/10])and the companion cases holding that the New York’s decision upholding the New York PFO sentencing statutes “the state courts did not engage in an unreasonable application of clearly established Supreme Court precedent in affirming the convictions.” (here) In that post, I also reviewed the decision of the New York Court...
read moreCONVICTION OF USER OR ADDICT IN POSSESSION OF A FIREARM DOES NOT REQUIRE ONE TO BE DETAINED AFTER PLEA OR VERDICT OF GUILTY
byMark D. Hosken, Supervisory – Assistant Federal Public Defender, WDNY A defendant enters a guilty plea or is found guilty after trial of being a user or addict in possession of a firearm in violation of 18 U.S.C. §922(g)(3). The prosecutor moves the Court to remand the individual into custody pending sentencing. The government contends 18 U.S.C. § 3143(2) requires such detention as such possession is a crime of violence under 18 U.S.C. §...
read more
