Recent Third Department Reversals, Modifications and Dissents
by Tim Davis, Esq. People v Hackett, 47 AD3d 1122 (January 24, 2008) Late one night, a State Trooper observed the defendant drive his vehicle over the fog line. The Trooper activated his emergency lights. After pulling over to the side of the road, the defendant leaned toward the passenger seat of his vehicle before the Trooper approached. The Trooper requested both license and registration, but defendant produced only the registration. Upon questioning defendant...
read morePost Release Supervision: What is the Remedy When Not Imposed By a Judge?
In People v Sparber, 2008 NY Slip Op 03946 [NY 4/29/2008], the Court of Appeals finally considered the remedy when sentencing courts fail to pronounce their Post Release Supervision [PRS] terms in accordance with Criminal Procedure Law sections 380.20 and 380.40 and more than a year has past. The Second Circuit, in considering this issue, held in Earley v Murray (451 F3d 71 [2d Cir 2006]), which held that DOCS’s administrative addition of a...
read moreWeapons and Assault Sentences to Run Concurrently
In People v Torres, 2008 NY Slip Op 03888 [4th Dept 4/25/2008], the Court agreed with defendant…that County Court erred in directing that the sentence imposed on the count of criminal possession of a weapon shall run consecutively to the sentence imposed on each count of attempted assault and attempted aggravated assault. There is no evidence that defendant “possessed the pistol with a purpose unrelated to his intent to shoot [the officers]” (People v...
read moreDefendant Needs to Object to Conflict of Interest
In People v Peterson, 2008 NY Slip Op 03822 [4th Dept 4/25/2008], the Court held that where a defendant contended that County Court failed to engage in a sufficient Gomberg inquiry when the court learned that defendant and a codefendant were represented by the same attorney (see People v Gomberg, 38 NY2d 307, 313-314) the “Defendant failed to preserve that contention for our review (see People v Woods, 6 AD3d 1126, 1127, lv denied...
read moreEvidence of ABSENCE of Sexual Activity Barred by CPL 60.42
The Court in People v Bones, 2008 NY Slip Op 03788 [4th Dept 4/25/2008] held that The court properly determined that CPL 60.42, which concerns the admissibility of evidence of a victim’s past sexual activity, also concerns the admissibility of evidence of the absence of sexual activity on the part of the victim (see generally People v Williams, 81 NY2d 303, 311; People v Nemie, 87 Cal App 3d 926,...
read more
