Who Determines Whether to Have the Jury Consider a Lesser Included Offense – Counsel or Defendant?
In People v Colville (2010 NY Slip Op 07185 [2d Dept 10/5/10]) the Appellate Division, Second Department conducted a thorough review of the cases and commentaries on the question of whether the decision to have the jury consider a lesser included offense is a fundamental one to be made by the defendant or a strategic or tactical one for counsel. As the Court noted Having accepted the assistance of counsel, a defendant retains authority...
read moreAppellate Courts Can Look at Trial Evidence in Reviewing Denial of Motions for Severance
Generally, appellate courts cannot consider trial testimony in reviewing a decision denying a pretrial motion (People v Gonzalez, 55 NY2d 720 [1981]). An important exception to this rule is that appellate courts can look at the trial evidence in determining whether a motion for severance should have been granted (People v Lopez, 68 NY2d 683 [1986]) A recent example of how trial evidence can be considered by an appellate court reviewing the denial of...
read moreDNA Databank Fees
The Appellate Division, Fourth Department has repeatedly recognized that the statutes (see Executive Law § 995 [7]; Penal Law § 60.35 [1] [a] [v])creating the DNA databank fee did not provide for the imposing of such fees for offenses committed prior to the effective dates of those statutes. Furthermore, the Court has exercised its interest of justice jurisdiction to modify judgments to eliminate improperly imposed DNA fees even where counsel failed to timely object....
read moreConcurrent Sentencing and Actus Reus
Penal Law limits the circumstances in which a court may impose consecutive sentences. Specifically, Penal Law § 70.25 [2] provides that concurrent sentences must be imposed “for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other” Thus, in part, sentences imposed for two or more offenses may not run...
read moreCatu Reversals Keep on Coming
In People v Catu (4 NY3d 242 [2005]) the Court of Appeals held that s“a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action” and decided that the trial court’s failure to advise Mr. Catu of his obligation to serve a five-year term of postrelease supervision required reversal of his conviction. Further,...
read moreGeneral Objections Are Generally Worthless
In 1883, in Bergmann v Jones (94 NY 51) the Court of Appeal held that The rule is well established that where there is a general objection to evidence and it is overruled and the evidence is received the ruling will not be held erroneous, unless there be some grounds which could not have been obviated had they been specified, or unless the evidence in its essential nature be incompetent. And the Court had...
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