Rochester Curfew Ordinance Invalid
By a 3-2 vote , the Fourth Department in Anonymous v City of Rochester (2008 NY Slip Op 07724 [10/1008]) held that the Rochester Ordinance which imposed a curfew on persons under seventeen and subjected them to arrest for violation of the curfew conflicted with both New York statutes and the constitution and is, thus, invalid. (Great job by Michael Burger and David Ahl working pro bono). Attorneys representing person who were stopped pursuant...
read moreChild Sexual Abuse Accomodation Syndrome Testimony Admissible Without Frye Hearing
In People v Bassett (2008 NY Slip Op 07729 [10/3/08]) the Fourth Department held that there was no error in allowing the People to present the testimony of a witness concerning child sexual abuse accommodation syndrome (CSAAS) without first conducting a Frye hearing. With respect to the merits of defendant’s contention that a Frye hearing was required, it is well settled that expert testimony concerning CSAAS is admissible to assist the jury in understanding...
read moreWhat Constitutes an Unequivocal Assertion of the Right to Counsel?
In New York the unequivocal assertion of the right to counsel acts to preclude any further questioning unless there is a waiver of the right to silence in the presence of counsel. But what constitutes such an unequivocal assertion? That was the issue in People v Edwards (2008 NY Slip Op 07474 [10/3/08]. When two detectives sought to speak to Mr. Edwards he informed them that his union representative and a friend who is...
read moreCheck the Certificate of Conviction — It is Often Wrong
Since Corrections officials must follow the terms of a certificate of conviction, it is critical that appeals attorneys review the certificate of conviction and determine if it accurately reflects the appellant’s convictions and sentences. In October, 2008 the Fourth Department noted errors in the certificates of conviction in seven different cases. In People v Wynn (2008 NY Slip Op 07432 [10/3/08]) the certificate had the wrong predicate status. In People v Switzer (2008 NY...
read moreAn Issue Likely to Result in Appellate Relief, Even When Unpreserved
One issue that the Fourth Department has repeatedly reversed on, even when unreserved is the erroneous setting of the expiration date of an order of protection. For example, in February 2008, we noted that the Court in People v Smith (2008 NY Slip Op 00904 [4th Dept 2008)held that [W]e agree with defendant that the court erred in calculating the expiration date of the order of protection without taking into account the jail time...
read morePermissible To HaveTestimony That Jailhouse Informant’s Cooperation Agreement Required Truthful Testimony
In People v Santana (2008 NY Slip Op 07377 [4th Dept 10/308]), the Court held that there was no error in permitting the attorney for a jailhouse informant to testify that pursuant to to the his cooperation agreement, the informant was required “to provide truthful cooperation” at defendant’s trial in order to receive a downward departure of his federal sentence. The Court explained that since the informant had not yet testified, his attorney could...
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