When Is a Win Not a Win?
In People v Backus (2008 NY Slip Op 08772 [4th Dept 11/14/2008)] the defendant won on his claim that the consecutive sentence imposed was illegal. However, a panel of the Fourth Department divided 3-2 as to the appropriate remedy, with the majority holding that on remitter of the matter to County Court to resentence defendant the court should “entertain a motion by the People, should the People be so disposed, to vacate the plea...
read moreDisclosure After Two Years Is Not A Prompt Outcry
What constitutes a prompt outcry permitting the admission of hearsayis a relative concept dependent on the facts. In People v Workman (2008 NY Slip Op 08801 [4th Dept 11/18/08]) the Court held that the trial court erred in admitting in evidence the testimony of the boyfriend of the victim concerning her disclosure of the sexual abuse two years after the last incident of abuse. The court admitted the testimony as a prompt outcry, inasmuch...
read moreVindictiveness In Sentencing After Retrial
In People v Young(94 NY2d 171) the defendant had originally received an aggregate sentence of 45 years to life, including a sentence of 2-4 years on a count of criminal possession of stolen property. On retrial he was acquitted of a all counts other than the stolen property charge for which he was sentenced, as a persistent felon, to 25 years to life. This increase from 2-4 years to 25 years to life was...
read moreWhat Must Be Shown For A Defendant To Be Entitled To Specific Performance Of A Plea Agreement?
In People v Jenkins (2008 NY Slip Op 07992 [10/23/08]) the Court of Appeals considered who has to prove what in order for a defendant to be entitled to specific compliance of a plea agreement. Specifically who has has the burden of proof of compliance or non-compliance and what does that burden entail? Under what circumstances can a court add additional terms to a plea agreement? By a 6-1 vote, the Court upheld the...
read moreChallenge to Facial Sufficiency of Accusatory Instrument Not Forfeited By Guilty Plea
In People v Lucas (2008 NY Slip Op 07948 [10/21/08]) the Court of Appeals rejected a broad reading of its holding in People v Cahill (2 NY3d 14 [2003], in which the Court had held that it was impermissible double counting to use the intent to kill to transform the criminal trespass into a burglary in the first degree and to then use the burglary in the first degree to elevate a murder in...
read moreImportant Decision Regarding Subpoenas and Privilege in Criminal Cases
In a lengthy opinion, the Court of Appeals in People v Kozlowski, 2008 NY Slip Op 07759 [10/16/08], upheld the larceny (and related) convictions of the former CEO Kozlowski and CFO Swartz of Tyco and the fines of $35 and $70 million imposed on Swartz and Kozlowski, respectively. Although this decision rejected the defendants’ arguments for a reversal and/or vacateur of the fines, it is likely to be cited more frequently by defendants than...
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