Ear-witness identification procedures, like eye-witness identification procedures, may not be unduly suggestive
As we know, under the due process clauses of the New York State Constitution, Article I, § 6, and the United States Constitution, Fourteenth Amendment, evidence of a pretrial identification of the defendant is inadmissible if the procedure used is “unnecessarily suggestive” (Neil v Biggers, 409 US 188 [1972]; People v Adams, 53 NY2d 241 [1981]; People v Owens, 74 NY2d 677 [1989]; People v Farraro, 144 AD2d 976 [4th Dept 1988]). If tainted...
read moreSurreptitiousness is an element of Unlawful Surveillance
Penal Law 250.45 contains four subdivisions describing four different ways a defendant may engage in Unlawful Surveillance in the Second Degree. Although easily overlooked, each subdivision of the statute includes a requirement that the surveillance in question be done surreptitiously. In People v Schreier, 22 NY3d 494 [2014], the Court made clear that surreptitiousness is a separate and distinct element from whether the recording was done without the subject’s knowledge or consent, and...
read moreNew York State’s Affirmative Defenses: Legitimate Tools for the Defense or Traps for the Unwary?
Last month, one of our clients had his murder conviction reversed by the Appellate Division, Fourth Department, after the trial court belatedly charged the affirmative defense of renunciation over objection (People v Brewer, 2014 WL 2782143, __ AD3d __ [4th Dept June 20, 2014]). The court recognized the general rule that a court may not charge an affirmative defense over a defendant’s objection, and acknowledged that the Third Department had adopted a rule that...
read moreThe People’s failure to disclose civil allegations against a police witness may still constitute a Brady violation under circumstances different than those in People v. Garrett.
by Danielle Wild, 2015 J.D. Candidate at Syracuse University College of Law and Intern at Easton Thompson Kasperek Shiffrin LLP Yesterday, the New York Court of Appeals decided People v. Garrett, holding the People did not commit a Brady violation when they failed to disclose that a federal civil action had been brought against one of their police witnesses. Mark Garrett was convicted after a trial by jury of two counts of murder in the...
read moreIpads and apps in your legal practice
by Jill Paperno, author of Representing the Accused: A Practical Guide to Criminal Defense As the Supreme Court recognized this week in Riley v. California, 2014 WL 2864483, technology is an inescapable component of our daily lives. In Riley, the Court answered the question of whether warrants are required before police can search cell phones – and the answer was yes (with exceptions for exigent circumstances). Justice Roberts, who wrote for the majority, stated,...
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