Sandoval Rulings Subject to Change Based on Defense Proof
A Sandoval hearing is designed to let the accused make an informed choice whether he should take the stand prior to testifying by providing a pre-trial determination of the permissible scope of cross-examination of the accused (People v Sandoval, 34 NY2d 371). Generally, a trial court’s authority to change its Sandoval ruling is limited once defendant has decided to testify in good-faith reliance on the court’s pretrial ruling (see, People v Powe, 146 AD2d...
read moreAttacking Guilty Plea as Not Knowing and Intelligent May Not be Knowing and Intelligent
When an appellant successfully challenges a conviction which followed a trial, the imposition of an increased sentence after a retrial is presumed to violate the Due Process Clause of the New York State Constitution, even where the retrial is before a different judge than imposed the original sentence (People v Van Pelt, 76 NY2d 156, 158 [1990]). There is no parallel presumption of vindictiveness when a person who successfully challenges a conviction obtained pursuant...
read moreProsecutors Have No Standing to Object to Subpoenas for Documents from Governmental Agencies
By Jill Paperno, Esq. Second Assistant Monroe County Public Defender Defense attorneys often seek subpoenas related to their cases. When defense attorneys subpoena documents from a governmental entity, we have to serve notice on the prosecutor. The prosecutors often object to such subpoenas on a variety of grounds. But do they have standing to object? As detailed below, it appears that the answer is a firm “no.” A. The Prosecutor Has No Possessory or...
read morePlea Without Written Order Denying Suppression Forfeits Issues
Get it in writing. How many times have we heard that? It’s good advice, sometimes it’s even the law. CPL 710.70(2) provides that “An order finally denying a motion to suppress evidence may be reviewed upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty.” The word used is “order”, while the Legislature elsewhere in the same article freely used the word...
read moreEx Post Facto Protection Remains in a Post-Booker Sentencing World
by Mark D. Hosken, Supervisory Assistant Federal Public Defender, Western District of New York The Ex Post Facto clause (U.S. Const. Art. I, §9) prohibits laws that increase the punishment for a crime after its commission. Garner v. Jones, 529 U.S. 244, 249 (2000). That protection is extended to the application of the United States Sentencing Guidelines. See U.S.S.G. §1B1.11(b)(1). Section 1B1.11 directs the application of an earlier guideline manual if application of a...
read moreMissing jurors
Nobody gives Parker warnings to the jury. No judge says to the jury “if you fail to appear, the trial will continue without you”. If they did, then the jury might feel free to stay home instead of being afraid someone would come looking for them. So what do you do if parts of your jury don’t show up when they’re supposed to? CPL 270.35(2)(a) is one of the better statutes in terms of...
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