Showups Identifications Are Disfavored
In People v Blunt (2010 NY Slip Op 02191 [4th Dept 3/23/10]), the Fourth Department suppressed the results of a showup identification where the testimony “established that the incident occurred at approximately 7:25 a.m. and that the showup was conducted at approximately 9:30 p.m., several miles away from the scene of the incident and after defendant had been placed under arrest and drugs were found on his possession.” The Court explained that It is...
read moreAs Defendant Contends In His Pro Se Supplemental Brief . . .
The most difficult and important part of an appellate attorney’s job is identifying possible issues. An appellate record is like a puzzle that the attorney must solve to discover what issues are present and worth raising. An issue not raised is not likely to result in reversal. That should be enough incentive to scour the record for possibly meritorious issues. If not, the possibility that the court may reverse a conviction on an issue...
read moreAdverse Inference From Failure To Record Interrogation
As previously noted the Fourth Department ended 2009 by holding that since there is not a constitutional duty for police to record interrogations a defendant is not entitled to an adverse inference charge regarding the failure to record. Yet, both the United States Supreme Court and the New York Court of Appeals have long recognized that a party’s failure to produce evidence which would elucidate the transaction in issue, when that party has it...
read moreA Judge Who Doesn’t Know The Law Can’t Exercise Discretion
In People v Bernell (2010 NY Slip Op 02346 [4th Dept 3/23/10]) the Fourth Department vacated a consecutive sentences when the sentencing court mistakenly believed that it could not impose concurrent sentences: At sentencing, defendant requested that the sentence run concurrently with the indeterminate sentence he was serving at that time. In denying the request, County Court stated that it was “not authorized by law to make that concurrent. It must be consecutive ....
read morePolice Without Warrant Can’t Just Enter House And Arrest Occupant
In People v Forbes (2010 NY Slip Op 02349 [4th Dept 3/19/10] the Appellate Division, Fourth Department found that there was a violation of the well settled requirement that “police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home” (Kirk v Louisiana, 536 US 635, 638; see Payton v New York, 445 US 573, 589-590): Where, as here, the People contend that...
read moreSORA and out-of-state convictions
Some times a state just wants to put up a giant “Keep Out” sign for sex offenders from other parts of the country. Anyone who has seen quotes from the debates knows that this was a clearly expressed desire of some supporters of the statute. Other times they are more sophisticated. Correction Law 168-g (1) made the Sex Offender Registration Act applicable to anyone in prison, on probation or on parole as of January...
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