AD4th: Decisions Issued 11/23/2007
People v Cruz, 2007 NY Slip Op 09282 [Available Here] At defendant’s first trial, which ended in a mistrial, defense counsel unsuccessfully raised a Bruton violation objection (see Bruton v United States, 391 US 123, 135-137) to the admission of prejudicial statements by a non-testifying co-defendant. At defendant’s second trial these statements were admitted without objection. On appeal the defendant argued that it was error to allow the admission of these statements. The Court...
read moreDisorderly Conduct Requires More Than Inconvenience of Pedestrians
From Jim Eckert: The Court of Appeals ruled last week on the sufficiency of an information charging Disorderly Conduct (standing on the sidewalk) and resisting arrest. In People v Jones, __ NY3d __ [11/20/17] the court reaffirmed that an information has to allege sufficient facts to make out a prima facie case. The allegation which was held to be insufficient was: he observed defendant along with a number of other individuals standing around at...
read moreI Think I Just Asked For An Attorney
When a suspect being questioned tells the police that “I think I need an attorney” and the police officer writes in his notes that the suspect “asked for” a lawyer, there is no support for a holding that the request for counsel was equivocal. That apparently non-exceptional statement is the holding of the Court of Appeals in People v Porter, _ NY3d _ [11/15/07]. What makes it worth noting is that a divided Appellate...
read moreFourth Department Decisions Issued 11/9/2007
People v Adams, 2007 NY Slip Op 08571 [4th Dept 11/09/07] – holding that the court erred in increasing defendant’s sentence from concurrent to consecutive terms after he refused to sign the no-contact order of protection. That “increase cannot be justified under sentencing procedures nor supported under the guise of punishment for contempt of court” (People v Culpepper, 33 NY2d 837, 838, cert denied 417 US 916). However, this decision is also a reminder...
read moreMust IAC Claims Be Preserved?
In People v Jones, (55 NY2d 771 [1981]), the Court of Appeals held that claims of ineffective assistance of counsel (IAC) may be raised for the first time on appeal. A contrary holding would penalize a defendant who received ineffective assistance for the failure of the deficient counsel to preserve the issue of ineffectiveness. Since few ineffective attorneys are likely to preserve the issue of their ineffectiveness, virtually all IAC claims (including those with...
read moreAppellate Review of Bargained for Sentences
In its November decisions, the Appellate Division, Fourth Department twice (here and here) held that Where, as here, a “defendant effects a plea bargain and receives the precise sentence that was promised, he should not later be heard to complain that he received what he bargained for” (People v Chambers, 123 AD2d 270, 270; see People v Dixon, 38 AD3d 1242). Considering that the Court of Appeals in People v Thompson, 60 NY2d 513...
read more
