On Friday, November 20, 2020, ETKS Partner Brian Shiffrin was victorious not once, but twice at the Appellate Division, Fourth Department, securing reversals and new trials for two seperate clients who were convicted of Manslaughter in the First Degree, and in the other case attempted murder in the second degree and criminal possession of a weapon in the second degree.
In People v Sylvester, Brian was able to secure a reversal in which the Appellate Division found that County Court erred in permitting the prosecutor to present evidence of a prior uncharged shooting under the theory that defense counsel opened the door to such evidence by the cross-examination of a law enforcement witness. The cross did not create a misleading impression warranting further explanation. The Appellate Court found that it was error to permit the People to supplement their direct case with four additional witnesses. Brian succesfully argued that such proof far exceeded that necessary to confirm the salient facts. Moreover, the prosecutor deprived the defendant of a fair trial by impeaching two of his own witnesses in violation of CPL 60.35. The People were amply warned that each relevant witness would testify as she ultimately did, and thus they assumed the risk of the adverse testimony.
You can read the decision here.
In People v Salone, Brian successfully argued that opinion testimony of an investigator was prejudicial and ‘usurp[ed] the jury’s fact-finding function’. He further argued (succesfully) in achieving a new trial for his client based on prejudicial opinion and background testimony provided by a family member of the complainant. The Appellate Division agreed with Brian and concluded “that reversal is required based upon the cumulative effect of the above evidentiary errors, which substantially prejudiced defendant’s rights, and that a new trial must be granted.”
You can read the decision here.
