Sentences are Imposed by Judges and Not by DOCS
Norm Effman lived an appellate attorney’s dream. On the morning of February 20, 2008 he argued two cases challenging the authority of the Department of Corrections to add a term of post release supervision {PRS} to a sentence when the sentencing judge has not imposed PRS. That afternoon, the Fourth Department issued two decisions (People ex rel. Burch v Goord 2008 NY Slip Op 01445 and People ex rel. Eaddy v Goord 2008 NY...
read moreCrawford v Washington, the New York Court of Appeals, and DNA and Fingerprints
On February 19, 2008, the Court issued decisions in three cases with Crawford issues, two opinions regarding the application of Crawford. In so doing, the Court took a nuanced middle ground regarding the tests to be used in deciding whether evidence is testimonial and is, thus, subject to the confrontation requirements for testimonial evidence set forth in Crawford. The Court also seemed to rewrite a statute to mean what the Court believed the legislature...
read moreSignificant AD 4th Department Decisions Issued February 8, 2008
1. People v Prior 2008 NY Slip Op 01189 [2/8/08] Contrary to defendant’s contention, County Court did not err in admitting evidence that defendant was on parole at the time of the crime, had stopped reporting to his parole officer and had violated parole by leaving New York State immediately thereafter. That evidence was relevant in establishing “defendant’s consciousness of guilt, and the probative value of the evidence outweighed its prejudicial effect” (People v...
read moreEvidence of Common Scheme or Just Evidence of Propensity?
The Court divided as to whether, in a sex crime case, the People should be allowed to present testimony that the defendant committed similar acts with the victim in another county during the same time frame as that alleged in the case at bar. In People v Leeson 2008 NY Slip Op 01243 [2/8/08], County Court admitted extensive testimony from the victim, her brother, and her mother concerning two incidents, occurring in “late August,...
read moreCan a Seizure Lawfully be Based on the Officer’s Mistakes as to the Law?
In People v Estrella 2008 NY Slip Op 01239 [2/8/08] the Court divided as to whether the stop of a vehicle with Georgia license plates was lawful where the window tint rendered them less transparent than required pursuant to a Georgia statue which had already been declared unconstitutional. In part the disagreement is over whether the police need to know whether the driver was a Georgia resident and, thus, not subject to New York’s...
read moreInsufficient Specificity of Insufficiency of Proof
Ever since the Court in People v Gray (86 NY2d 10) made clear that a general motion for a trial order of dismissal (T.O.D.) which fails to specify the alleged insufficiency of proof does not preserve the claim that the proof was insufficient counsel and courts have struggled with the questions as what wording is needed in a T.O.D. motion. In depraved murder cases in which the defendant claims that the evidence shows intentional...
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