Plea Without Written Order Denying Suppression Forfeits Issues
Get it in writing. How many times have we heard that? It’s good advice, sometimes it’s even the law. CPL 710.70(2) provides that “An order finally denying a motion to suppress evidence may be reviewed upon an appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty.” The word used is “order”, while the Legislature elsewhere in the same article freely used the word...
read moreMissing jurors
Nobody gives Parker warnings to the jury. No judge says to the jury “if you fail to appear, the trial will continue without you”. If they did, then the jury might feel free to stay home instead of being afraid someone would come looking for them. So what do you do if parts of your jury don’t show up when they’re supposed to? CPL 270.35(2)(a) is one of the better statutes in terms of...
read moreRepugnant Verdicts
Juries are permitted to deliver stupid verdicts. They can believe the wrong people, accept the ridiculous while rejecting the obviously true. They cannot, however, square a circle. So some verdicts will arguably be repugnant. A verdict is repugnant when it is logically inconsistent, not when it's factually stupid. In other words, a combination of convictions and acquittals will be legally unacceptable when, no matter what evidence the jury might have accepted or rejected, this...
read morePeople v Perkins – Court of Appeals – June 29
The defendant physically resisted appearing in a lineup. Police then took a photograph of his face, telling him it was necessary for a “prisoner movement slip”, and they did the same for the fillers. The complainant picked the defendant from this “lineup”, as he had done from a prior photo array. Because lineup identifications are admissible, and photo arrays are not, the prosecution argued that the defendant improperly denied them useful evidence, and therefore...
read morePeople v King – Court of Appeals – June 29
County court had ruled that police had no basis to stop the defendant, and that it could not be concluded that he stopped voluntarily. County court nonetheless refused to suppress the evidence obtained from the stop. The Court of Appeals reversed and suppressed. All that is surprising is that three judges dissented from this two paragraph opinion. The dissenters objected that, since the defendant and a companion were on separate motorcycles, when police legitimately...
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