Prudent Counsel Will Continue to Challenge the Constitutionality of New York’s Persistent Felony Offender Sentencing Statutes
Back in March, I wrote about the decision in Besser v Walsh, 601 F3d 163 [2d Cir 3/31/10]) in which the United States Court of Appeals for the Second Circuit struck down New York’s persistent felony offender law as unconstitutional, holding that “the New York courts’ upholding of the constitutionality of the New York state persistent felony offender (PFO)sentencing statutes after the United States Supreme Court’s decision in Blakely v Washington (542 US 296...
read moreCan a Defense Counsel Validly Concede Guilt to One or More Counts Over the Defendant’s Objection?
In People v Colville (2010 NY Slip Op 07185 [2nd Dept. Oct 5, 2010]) the Second Department, without reaching a decision on the issue, engaged in detailed review of the arguments as to whether the decision to submit a lesser included offense is a fundamental one that must be made by the defendant or is a strategic one that can be made by counsel. The Colville court noted that courts have split on this...
read moreRemoval of a Prospective Juror for Living in an Almost Exclusively Non-White Neighborhood is a Race Neutral Reason for a Peremptory Challenge
People v Black (_ NY3d_, 2010 NY Slip Op 08766 [11/3010]) is one of the four cases with Batson issues that the Court considered in People v Hecker. The Court, in part, determined whether the trial court was correct in finding that the District Attorney had put forth a race neutral reason for using a peremptory challenge to remove prospective juror Gordon. The People’s reasons for striking Gordon were twofold: she was unemployed and...
read moreModus Operandi Exception to Molineux Has Limits
In People v Stubbs (2010 NY Slip Op 08485 [4th Dept 11/19/10]) the Appellate Division, Fourth Department held that the trial court erred in admitting evidence with respect to a prior robbery committed a prior attempted robbery committed by defendant. This evidence had been admitted to establish the identity of defendant based on his modus operandi (see generally People v Molineux, 168 NY 264, 293-294, 313-317). In reversing, the Court explained that defendant’s method...
read moreWhen Must A Defendant Be Given the Right to Withdraw a Plea Before a Higher Sentence Than Bargained for May Be Imposed?
The appellant in in People v Magliocco...
read moreCoram Nobis May Lie Even When CPL 460.30 Time Limits for Seeking Permission to File a Late Notice of Appeal Has Long Passed
In People v Syville (_NY3d_, 2010 NY Slip Op 07249 [10/14/10])the Court of Appeals held that “[w]here an attorney has failed to comply with a timely request for the filing of a notice of appeal and the defendant alleges that the omission could not reasonably have been discovered within the one-year period, the time limit imposed in CPL 460.30 should not categorically bar an appellate court from considering that defendant’s application to pursue an...
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