Forcing Inmates to Particpate in Programs In WhichThey Must Admit Guilt Described As An Unfair “Hobson’s Choice”
One of the most difficult issues persons convicted of sex crimes have is how to participate in sex offender programs required for release or favorable classification without admitting conduct that was denied at trial and may be denied on re-trail, if an appeal is successful. The Fourth Department, in People v Kearns (2009 NY Slip Op 09800 [4th Dept 12/30/09]), recognized this dilemma and held it was wrong for a inmate to be penalized...
read morePossession of Cash a Month after Alleged Drug Sale Inadmissible
A defendant’s possession of case at time of arrest is not admissilbe if not linke to criminality. Thus, in People v Sumter (2009 NY Slip Op 09782 [4th Dept 12/30/09]), the Appellate Division, Fourth Department held that the trial court erred in admitting in evidence testimony concerning the seizure of $1,027 in cash from defendant at the time of his arrest, as well as the cash itself. Defendant was arrested over one month after...
read moreKnowing Where a Gun is Kept Does Not Establish Possession
The Appellate Division, Fourth Department, in People v Carmichael (2009 NY Slip Op 09788 [4th Dept 12/30/09]), held that the evidence is legally insufficient to support a conviction of criminal possession of a weapon in the third degree where, upon his arrest, the defendant told the police that the gun was in a safe located on a closet shelf in his mother’s bedroom and that he lived in his mother’s house. Defendant gave the...
read morePermissible for sitting Supreme Court justice to serve as grand jury foreperson
In People v. Davis, (12/30/09), the Fourth Department held that reversal was not required where a sitting Supreme Court justice sat as foreperson of the grand jury that indicted the defendant because she was not a part of the superior court that impaneled the grand jury. Defendant argued that a grand jury is impaneled by a superior court and constitutes a part of such court (CPL 190.05), and that as such, every supreme court...
read more18 minutes of blank tape – still
In People v. Hammons (12/30/09) the Fourth Department held that the trial court “did not abuse its discretion in refusing to give an adverse inference charge concerning the failure of the police to record defendant’s interrogation. It is well settled that the police have no obligation to record an interrogation (see People v Childres, 60 AD3d 1278, 1279, lv denied 12 NY3d 913), and that the failure to record a defendant’s interrogation electronically does...
read moreWeight, weight, don’t tell me
The recent packet of Fourth Department decisions (12/30/09) includes a number of appeals arguing (unsuccessfully, in every case but one) that the defendant’s conviction was not supported by the weight of credible evidence, giving the court an opportunity to restate the applicable standard for review of such claims. In People v. Goff, the only case where defendant obtained relief on a weight of credible evidence claim this time around (likely because the testimony of...
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