Exclusion of Expert Testimony Regarding False Confessions Affirmed
Although counter intuitive, there now exists irrefutable evidence that people falsely confess to having committed serious crimes. Indeed in about a quarter of all wrongful convictions cleared by DNA evidence there had been a false confession (see, Innocence Project -Understand the Causes). Included in this group are cases in which the Fourth Department had affirmed the conviction despite a challenge to the voluntariness of the confession (See, e.g., People v Warney, 299 AD2d 956,...
read moreMore Decisions, More Failures to Renew TOD Motions
The Fourth Department issued decisions on October 2, 2009. In three of the criminal appeals (People v Bean, 2009 NY Slip Op 06947 [4th Dept 10/2/09]; People v Laing, 2009 NY Slip Op 06906 [4th Dept 10/2/09]; People v Parks, 2009 NY Slip Op 06995 [4th Dept 10/2/09] the Court noted that the trial attorney had failed to renew the motion for a trial order of dismissal (TOD motion) as has been required, at...
read moreRemember: Move and Then Move Again
In People v Kolupa (59 AD3d 1134 [4th Dept 2009])the Fourth Department split 3-2 on whether there was sufficient corroboration of unsworn testimony of a 7-year-old to support conviction for attempted rape, criminal sex act 1st degree and sexual abuse in the 1st degree. The purported corroboration was Mr. Kolupa’s statement that he had exposed himself to the boy – a statement that did not mention any touching or physical act. The three judge...
read morePenal Law 70.10(1)(c): clarity takes a holiday
To qualify for an enhanced sentence as a persistent felony offender, a defendant must have been previously convicted of two or more felonies. Determining whether one has been previously convicted of two or more felonies sounds simple, right? Snatching obtuseness from the jaws of clarity, the Legislature has given us Penal Law 70.10(1)(c), which provides that: “For the purpose of determining whether a person has two or more previous felony convictions, two or more...
read moreTime running out; exercising the right to testify before the grand jury
If, as in our jurisdiction, the District Attorney opts for a lickety-split indictment procedure in order to avoid being required to proceed with preliminary hearings, defendants’ rights to testify before the grand jury may be compromised. On the other hand, there is an apparent anomaly in CPL Article 190 that may be employed to protect the defendant’s right to testify. The scenario goes something like this: Defendant is arraigned on a felony in local...
read morePlain logic loses again.
Where the appellate court finds the sentence imposed to have been illegal and remits for vacatur or resentence, who gets to pick which relief is imposed? In People v Maliszewski (2009 NY Slip Op 6376, decided Sept 3, 2009), the Court of Appeals held that it was the sentencing court, not the defendant. In 2006, County Court agreed that it would sentence Mr. Maliszewski to 2 to 4 years upon his conviction for burglary,...
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