Maybe TOD Motions Are Not Always Required
As you know, it has long been held that counsel fails to preserve for appellate review legal insufficiency claims when he has failed to raise the issue in a specific TOD motion (see, People v Gray, 86 NY2d 10 [1995]). However, CPL 290.10, which governs TOD motions, gives courts the authority to grant TODs only when the evidence is not only legally insufficient as to the charged offense but also insufficient to support a...
read moreDeconstructing McDaniel – Ineffective Assistance and Failure to Make A Specific Motion for a Trial Order of Dismissal
In People v McDaniel (54 AD3d 577 [1st Dept 2008]) the First Department divided 3-2 as to whether there was sufficient proof of the display of a weapon to constitute Robbery in the First Degree. Apparently, the issue which divided the Appellate Division was not clearly preserved in a motion for a trial order of dismissal. Consequently, the issue before the Court of Appeals was whether it was ineffective assistance of counsel to fail...
read moreImproper for Police to Extend Traffic Stop Without Reasonable Suspicion
Last Friday a divided Appellate Division, Fourth Department ruled that an extended investigation resulting from a tinted-windows stop was illegal, and suppressed drugs, dismissed drug possession, assault 2, resisting arrest and OGA convictions as a result (People v Edwards, 2009 WL 2635784 [4th Dept 8/28/09]). Deputies stopped Mr. Edwards for having excessively tinted windows. After using the tint meter, deputies determined that he appeared more nervous than a simple traffic stop warranted, presumably using...
read moreParole Cannot Be Denied Solely Due To Seriousness of Crime
In Matter of Johnson v New York State Div. of Parole (2009 NY Slip Op 06359 [4th Dept 8/27/09]) an appeal from the dismissal of an Article 78 petition challenging the denial of parole, the Fourth Department reversed and ordered a new parole hearing upon a finding that the Parole Board failed to weigh all of the relevant statutory factors and that there is “a strong indication that the denial of petitioner’s application was...
read moreCrawford and Lab Reports — Settled?
In 2004, the United States Supreme Court, in Crawford v. Washington (541 U.S. 36 [2004]), overruled its prior holding in Ohio v Roberts ( 41 U.S. 36 [2004]) that reliability of hearsay evidence is the test for admissibility, and held that “Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination…. [T]he only indicium of reliability sufficient to satisfy constitutional demands...
read moreInsufficient Protest To Insufficient Proof
In 1995, in People v Gray (86 NY2d 10 [1995]) the Court of Appeals held that a motion for a trial order of dismissal on the grounds of insufficiency of proof must specify the insufficiency in order to preserve the issue for review. When motion to dismiss is not sufficiently specific there is not a preserved issue of law before the appellate court (See People v Hawkins, 11 NY3d 484 [2008](discussed here). One would...
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