“I Did This Before” Admissible as Res Gestae
In a prosecution for murder in the fist degree based on a murder committed during a rape (Penal Law § 125.27 [1] [a] [vii]), as well as two counts of rape in the first degree (§ 130.35 [1]), the Court in People v Owens [4th Dep 5/2/08], held that defendant’s contention that the court erred in permitting the victim who [*2]was the subject of the two rape counts to testify that during the course...
read moreWhen Can Multiple Acts Be Grouped Together in an Intentional or Depraved Assault Count?
Five months after oral argument, in People v Bauman [2008 NY Slip Op 04182](4th Dept 5/2/08] a divided Fourth Department issued a decision addressing the propriety of grouping multiple acts over an extend period of time in a single count charging intentional or depraved indifference assault. The allegations are indisputably ugly. The People presented evidence that defendants resided with the victim, who suffers from multiple sclerosis, and that over an eight-month period they allegedly...
read moreSelected Criminal and Family Law Decisions From the First Department
By Janet Somes: From January & February, 2008 CRIMINAL LAW People v Stephens, 47 AD3d 586 (decided Jan. 31, 2008) Lower court order of suppression of evidence reversed (ouch). Defendant was taking a walk in area where there had been some robberies. One hand was swinging while his other hand was still, near his waistband. Defendant “apparently noticed the officers” but kept looking straight ahead “as if he was very nervous or had seen...
read moreRecent 2nd Department Decisions
From Jim Eckert: People v Russell , 47 AD3d 732 – Defendant, charged with CPW3, claimed temporary lawful possession. The court ruled that the trial court failed to make clear in the jury instructions that the People had to disprove this claim beyond a reasonable doubt, especially in light of the trial court’s failure to adequately marshal the evidence. Answering a jury question on the issue still failed because “the proper standard regarding the...
read moreAD 4th Dept: Selected Decisions of March 21, 2008
Reckless, But Not Depraved In People v Bolling 2008 NY Slip Op 02654 (4th Dept 3/21/08), the Fourth Department, once again, has reduced a depraved murder conviction to that of reckless manslaughter. In this case, the Court held that the fatal shot to the decedent’s thigh “does not warrant a finding that defendant’s conduct demonstrated the utter disregard for the value of human life’ necessary to support the convictionof depraved indifference murder (People v...
read moreUnreasonable To Respond To Attack
span style=”font-style:italic;”>People v Mcclellan 2008 NY Slip Op 02271 (3/14/2008) In holding that the proof was sufficient for a jury to find justification disproved, the Court held that even if a 17 year old African-American, who was walking with four African-Americans companions in a predominately Caucasian neighborhood, when five Caucasian men yelled racial epithets and initiated a physical confrontation, actually believed that deadly physical force was necessary,” it nevertheless supports a finding that defendant’s...
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