Court of Appeals Refuses to Permit Vacatur of Plea where agreed upon sentence unlawfully severe
People v Backus, decided today, is one of those short Court of Appeals decisions which seem innocuous, but cryptic, until you read the decision below. The Court of Appeals held simply that the appellate division should be reversed and that the People were not permitted to move to vacate the plea, noting inter alia that the prosecution did not appeal.On review of the decision below, however, it looks important. Three Fourth Department judges had...
read moreAnother Exoneration After a False Confession In Monroe County
On Wednesday, April 28, 2010, two months after Freddie Peacock’s 1976 rape conviction was vacated in Monroe County because DNA evidence established Peacock’s innocence, the 1992 Monroe County murder conviction of Frank Sterling was vacated and the charge dismissed when DNA evidence and the confession of the real killer proved Mr. Sterling’s innocence. (For a detailed account of the Frank Sterling case see this article and this article) The court vacated Mr. Sterling’s conviction...
read moreSecond Circuit Tries to Reconcile Strickland and Baldi Standards
On April 12, 2010, by a 2-1 vote the Court of Appeals for the Second Circuit Court in Rosario v Ercole (__F3d_ [2d Cir 4/12/10]) found that counsel provided ineffective assistance under the Strickland standard, but that the New York’s holding to the contrary was not unreasonable. Both the majority and dissent discuss issues regarding the application of the New York and federal standards for ineffectiveness of counsel. The majority held that despite the...
read moreCourt of Appeals Apparently Recognizes Inferential Objections
In the past the Court of Appeals has held “a party’s failure to specify the basis for a general objection renders the argument unpreserved for [that] Court’s review (see, People v Dien, 77 NY2d 885, 886; People v Tevaha, 84 NY2d 879; People v Ford, 69 NY2d 775, 776).” People v Tonge, 93 N.2d 838, 839 (1999). So one might think that where counsel failed to place any objection on the record the issue...
read moreNew York and the Second Circuit Courts of Appeal Differ On The Test For Determining Ineffective Assistance of Appellate Counsel
What is the standard for determining whether appellate counsel provided effective assistance? In 2009, the New York Court of Appeals in People v Borrell (2009 NY Slip Op 03589, 12 NY3d 365[2009] held that the test if not whether appellate counsel failed to raise a potentially winning and potentially dispositive issue, but whether the failure of appellate counsel to raise such an issue deprived defendant of the advocacy to which he was constitutionally entitled....
read moreTiming Is (Nearly) Everything – If You Want A Missing Witness Charge
A reminder: In 1986 the Court of Appeals held that a party seeking a missing witness instruction has the burden of making the request “as soon as practicable” (People v Gonzalez, 68 NY2d 424, 428 [1986]). So , if an attorney doesn’t not make a reuesst for such a chargeas early as practicable a coourt may proeprly deny the request,e ven if the requirements of the charge are otherwise met. In People v Carr...
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