Mr. Guilty, I presume? The use of statutory presumptions in criminal prosecutions.
This is the first in a series of several blog posts on statutory presumptions in criminal prosecutions, many of which deal with guns and drugs (presumption that all occupants possess a firearm found in a vehicle [Penal Law § 265.15(3)]; presumption that all occupants of a vehicle knowingly possess controlled substance not concealed on a occupant’s person [Penal Law § 265.25(1)]; presumption of knowing possession by all occupants of controlled substances or marijuana in...
read moreReversal for Prosecutorial Misconduct Seems Preferable to Reversal for Ineffective Assistance of Counsel
Last week’s post discussed People v Jones (2015 NY Slip Op 09773), in which the Appellate Division, Fourth Department, reversed a conviction in the interest of justice due to numerous acts of prosecutorial misconduct in summation which were egregious, but largely unpreserved by timely objection. That is obviously a great result for Mr. Jones and his appellate attorney (good work, Catherine Josh). And it allows trial counsel to join in celebrating the client’s reversal. But...
read moreDoctor Who: Expert Testimony in an Eyewitness Identification Case
by Bill Easton Over the last eight years the Court of Appeals has addressed the admissibility of expert testimony in identification cases at least five times. It is scheduled to revisit the issue yet again in the near future. (People v McCullough, 126 AD3d 1452 [4th Dept 2015], lv to appeal granted 25 NY3d 1079). During this time, the Second Circuit has also issued a rare full panel decision on the same issue (Young v Conway,...
read moreProsecutorial Misconduct and Preservation
As evidenced by the frequency with which prosecutorial misconduct, in summation especially, is not preserved for appeal, many defense attorneys are unclear about what amounts to misconduct. As a soon-to-be new attorney, I am admittedly no exception. Of course, some comments are so egregious that their impropriety is unmistakable. In 2000, the late Judge Judith Kaye, then Chief Judge of the Court of Appeals, wrote “Prosecutors play a distinctive role in the search for...
read moreUnless a defendant is advised of post-release supervision before pleading guilty, the conviction cannot later be counted as a predicate felony.
If a defendant was not advised of the post-release supervision component of his sentence before pleading guilty, it is unconstitutional for a court to consider that conviction for predicate felony purposes — even if the conviction preceded the Catu decision. At least, this is now true for courts within the First Department. In its 2005 decision, People v Catu, the New York Court of Appeals made clear that post-release supervision is a direct consequence...
read moreAnother successful challenge to denial of Parole Release.
We’ve discussed this in the prior posts on this site. CLPR Article 78 special proceedings are the means to challenge the denial of release to parole supervision. On June 2nd, Acting Supreme Court Justice John L. Michalski issued a Memorandum and Order vacating the Parole Board’s imposition of a twenty four month hold, and instead imposed a twelve month term effectively ordering the Respondent’s release in the Matter of Caufield...
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