When it Comes to Instructions on the Right Not To Testify, Timing Is Everything
In People v Mcknight (2008 NY Slip Op 07355 [4th Dept 10/3/08]) the Court rejected the contention that reversal was warranted because the court failed to instruct the jury at the outset of the trial that defendant had a constitutional right not to testify. Although defense counsel requested that instruction (see CPL 300.10 [2]), he did so after the People’s opening statement and thus the request was untimely (see CPL 270.40). In denying the...
read moreWhen Waiver of Appeal Does Not Encompass Sentencing Issue
Generally, the valid waiver by defendant of the right to appeal encompasses his challenges to the severity of the sentence (see People v Hidalgo, 91 NY2d 733, 737). There is an exception to this general rule. In People v Tolliver (2008 NY Slip Op 07341 [4th Dept 10/3/08]), the Court reaffirmed that even a valid waiver of the right to appeal does not encompass defendant’s challenge to the severity of the sentence where the...
read moreHearing Ordered on Claim of Ineffective Assistance of Counsel
In People v Wosu (2008 NY Slip Op 07292 [4th Dept 10/3/08],by a 3-2 vote, the Fourth Department held that it was error for a court to deny a 440.10 motion based on a claim of ineffective assistance of counsel (IAC). Since counsel framed the claim exclusively in therms of the United States Constitution that Copurt applied the federal test for IAC set forth in Strickland v Washington (466 US 668); see People v...
read moreCrawford Motions: Damned If You and Damned If You Don’t
Assigned appellate counsel, who upon a review of the record conclude that there are no non-frivolous issues, may move to be relieved of the assignment (People v Crawford, 71 AD2d 38). In federal court this is known as an Anders brief (Anders v California, 386 US 738). However counsel must be very careful to file such a motion only if there are, in fact no frivolous issues. And even if there are such issues...
read moreWhat does CPL 190.50 mean when it requires that the DA accord a defendant a reasonable time to testify at the Grand Jury?
CPL 190.50(5)(a) requires that upon a request from a defendant to appearbefore the grand jury, the district attorney must notify the defendant orhis attorney of the prospective or pending grand jury proceeding and must “accord the defendant a reasonable time to exercise his right to appear as awitness therein.” In People v Shemesh ( __ NY3d __ [9/16/08]) the Court of Appeals affirmed a dismissal of an indictment, with leave to represent, because there...
read moreError to Permit Defendant to Be Cross-Examined Regarding Prior YO Adjudication
In People v Towsley, 2008 NY Slip Op 06054 [4th Dept 7/3/08] [here], the Fourth Department held that it was an abuse of discretion for the trial court to issue a Sandoval ruling permitting the defendant to be cross examined regarding a prior Youthful Offender adjudication. This error was deemed harmless; but this seems like a ruling to remember when you have a client who previously received YO...
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