Threat of Higher Sentence If Trial Meant That Guilty Plea Was Coerced
In People v Flinn (2009 NY Slip Op 02031 [4th Dept 3/20/09]), a defendant contended that his guilty plea was coerced by County Court’s statements concerning the potential terms of incarceration in the event that defendant was convicted following a trial. Defendant had failed to raise that contention in support of his motion to withdraw the plea. Nor did he move to vacate the judgment of conviction on that ground. Despite this failure to...
read moreError to Deny Request for Brief Continuance to Present Critical Witness
In People v Oberlander (2009 NY Slip Op 02020 [4th Dept 3/20/09]), the Fourth Department held that County Court abused its discretion in denying defendant’s request for a brief continuance to present a witness who, according to defendant, would present critical testimony which, if credited would have negated an element of the crime charged. The Court explained that “by denying the request by defendant for a continuance, the court not only deprived her of...
read moreDon’t File A Crawford Motion Unless You Are Certain That There Are No Non-Friviolous Issues
In October I wrote about the risks of moving, pursuant to People v Crawford (71 AD2d 38) and Anders v California (386 US 738), to be relieved as assigned appellate attorney on the ground that the case presents no non-frivolous issues. One big risk that the Court will find that there are non-frivolous issues which counsel missed, which doesn’t make the attorney making the motion look very good. Those risks were realized in two...
read moreChallenging an Expansive Application of the Coconspirator’s Exception to the Hearsay Rule
Ben Trachtenberg, a Visiting Assistant Professor at Brooklyn Law School, has written an article which both documents and criticizes the recent trend of federal prosecutors seeking to expand the scope of Fed. R. Evid. 801(d)(2)(E), which allows the admission against a defendant of statements made by a coconspirator in furtherance of their joint crime. AUSAs have characterized the exception as a “joint venture exception,” arguing that it covers statements made in furtherance of any...
read moreImportant Case on Requirement that Court Inform Defendant of Mandatory Consecutive Nature of Sentence
In People v Morbillo(2008 NY Slip Op 09102, 56 AD3d 694 [2d Dept 11/18/08]) the Second Department considered the consequence of the failure of a superior court, during the plea proceedings, to advise the defendant that his sentence would run consecutively to the undischarged sentence on his prior conviction. The Court held that since, pursuant to Penal Law § 70.25 [2-a], the consecutive sentence was a direct consequence of the plea, the court’s failure...
read moreFourth Department Splits on Sufficiency of Corroboration of Unsworn Testimony of Complainant
In People v People v Kolupa (2009 NY Slip Op 01039 [4th Dept 2/11/09]) the court split 3-2 as to whether there was sufficient corroboration of the testimony of the 7 year old complainant regarding a rape charge. More importantly, it appears that that the Court split as to what type of corroboration is required. The majority held that the unsworn testimony of the seven-year-old victim was sufficiently corroborated by evidence of defendant’s opportunity,...
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