Belton Effectively Overruled
Perhaps the most important criminal law decision issued so far this year, was that of the United States Supreme Court in Arizona v Gant, — U.S. —, 2009 WL 1045962, in which the Court effectively (although not admittedly) overturned its holding in New York v Belton, 453 U.S. 454 (1981) regarding the permissible scope of incident of arrest searches when a person is arrested in an automobile. In 1999 Rodney Gant’s car was searched...
read moreSingle Failure to Object Constituted Ineffective Assistance of Counsel Requiring Reversal
In People v Brown (2009 NY Slip Op 03334 4th Dept 4/24/09) the Court held that a single failure, specifically the “defense counsel’s failure to object to the admission in evidence of the victim’s medical records, which contained information concerning prior allegations of sexual abuse against defendant” constituted ineffective assistance of counsel requiring reversal of a conviction for sexual abuse in the first degree and endangering the welfare of a child. The Court explained...
read moreIf At First You Don’t Succeed
What are the purposes of pre-trial identification procedures? Is it only to have the witnesses identify a suspect or should they also be used to determine the witnesses’ reliability? The Fourth Department confronted this issue in People v White (2009 NY Slip Op 03290 4th Dept 4/24/09). Identification testimony is powerful evidence of guilt. Yet, misidentification is the single greatest cause of wrongful conviction. So what should the police do when they discover that...
read moreRape in the First Degree an Inclusory Concurrent Count of Predatory Sexual Assault
In People v Scott (2009 NY Slip Op 03229 4th Dept 4/24/09) the Court reversed and dismissed the part of the judgment convicting defendant of rape in the first degree because it is an of predatory sexual assault against a child. The Court explained that pursuant to CPL 300.30 (4), concurrent counts are inclusory when the offense charged in one is greater than that charged in the other and when the latter is a...
read moreOntario County Conviction Reversed Due to Prosecutorial Misconduct
Ever wonder what it takes to get a conviction reversed because of prosecutorial misconduct? How about for unobjected to prosecutorial misconduct> The Appellate Division, Fourth Department, provided an answer in People v Morrice (2009 NY Slip Op 03282 4th Dept 4/24/09). In Morrice the Court reversed a conviction for burglary and grand larceny because the District Attorney committed the following eight acts of misconduct, only some of which were objected to by trial counsel:...
read moreAssault Charges Listing Multiple Acts Connected By And/Or Language Held Defective
In People v Bauman (2009 NY Slip Op 02265, 3/26/09) the Court of Appeals held that an indictment charging depraved indifference assault under Penal Law § 120.10 (3) which alleged eleven acts over an eight month period under one count violated Criminal Procedure Law (CPL) § 200.30 (1) because it was duplicitous. The indictment charged two defendants with one count of intentional assault [*2]under Penal Law § 120.10 (1) (the first count) for allegedly...
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