Irony and the Sex Offender Management and Treatment Act (SOMTA)
There was widespread outrage at the conduct of Nushawn Williams, who was alleged to have had unprotected sex with numerous girls and women despite being told he was HIV positive (see). This failure to inform the women that they risked not merely pregnancy or an STD, but rather a potentially fatal infection, without cure, meant that the sexual encounters were not truly consensual. Indeed, now that Mr. Williams is completing his sentence for a...
read moreAllegations in Support of 440 Motion May Require Holding Hearing to Promote Justice
In People v Campbell (2011 NY Slip Op 00813 [4th Dept 2/11/11]) the Court held that it was error to summarily deny a motion pursuant to CPL 440.10, based on the contention that the defendant was denied effective assistance of counsel because his trial attorney had failed to inform him of potentially exculpatory evidence, i.e., that before the murder an inmate at a state prison had advised the District Attorney that he had information...
read moreEscape From an Unauthorized Arrest is Not An Escape
Pursuant to Executive Law ยง 259-i(3)(a)(i)and 9 NYCRR 8004.2, a parole officer is required to obtain a warrant before arresting a parolee for an alleged parole violation. There is currently no statutory exception to that warrant requirementSo what if pursuant to a verbal order from a Senior Parole Officer, a parole Officer, without a warrant, arrests and and shackles a reporting parolee when he arrived at the parole office. and them after the senior...
read moreAttorneys Have Duty to Inform Defendants that the Ultimate Decision Whether to Testify is the Defendants’ Alone
Both the United States Supreme Court and the New York Court of Appeals have held that once a defendant chooses to be represented by counsel, counsel and not the defendant has control over most strategic decisions are made by the attorney and not the defendant (Jones v Barnes, 463 US 745, 751 [1983]; People v White, 73 NY2d 468, 478 [1989]). However, there are a few decisions that are so critical that they can...
read moreSpelled Just As It Sounds: 2 gs, 2 zs, and 2 ts.
David Juergens, after taking a thirteen year hiatus from working on criminal appeals, obtained reversals of two convictions for a single client, one for burglary after a trial and the other for criminal possession of a weapon after a guilty plea (see, People v Williams,2010 NY Slip Op 09663 [Appeal number 1, 4th Dept 12/30/10] and People v Williams,2010 NY Slip Op 09663 [Appeal number 2, 4th Dept 12/30/10]). The primary substantive issue on...
read moreTactics to Consider in Trying a Child Sex Case
By Jill Paperno, Second Assistant Monroe County Public Defender I just finished a child sex offense trial, and I thought I’d share some thoughts. I tried a few different things this trial that you may want to consider (or not): 1. Voir dire: In voir dire the potential jurors are asked if they can be fair when the case involves young children. I tried explaining more about what it was going to be like...
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