People v Frederick – on the unspecified powers of the court and consecutive sentences after bench trials
People v Trevor Frederick, decided June 10th, is an odd set of facts. Defendant was found guilty of attempted murder as to his former girlfriend, but the jury hung on felony murder regarding the death of the man she was with. The prosecution obtained a new indictment adding Manslaughter in the first degree. On this basis, the original indictment was dismissed by the court. On motion of the defendant, the court dismissed the new...
read moreRight to Counsel – need for a clear record of prior representation
In People v McClean, decided June 10th, the Court of Appeals held that, while right to counsel deprivations are normally reviewable even in the absence of an objection, the record must be clear that there was a deprivation, so a form of preservation requirement sneaks in through the back door. Here, defendant had spoken to police – in the presence of counsel – about the homicide in question. Three years later, he spoke to...
read moreCourt of Appeals Refuses to Permit Vacatur of Plea where agreed upon sentence unlawfully severe
People v Backus, decided today, is one of those short Court of Appeals decisions which seem innocuous, but cryptic, until you read the decision below. The Court of Appeals held simply that the appellate division should be reversed and that the People were not permitted to move to vacate the plea, noting inter alia that the prosecution did not appeal.On review of the decision below, however, it looks important. Three Fourth Department judges had...
read moreStrip Searching Everyone At a Search Warrant Execution
Today in People v Mothersell (2010 NY Slip Op 02677 [NY [4/1/10]) the Court of Appeals struck down the use of a search warrant which permitted the search of “all persons present” to justify ‘visual’ body cavity searches (I think this means the search was limited to visible body cavities) of persons at the scene of the search warrants execution who were not arrested and were searched solely based on the search warrant. It...
read moreSORA and out-of-state convictions
Some times a state just wants to put up a giant “Keep Out” sign for sex offenders from other parts of the country. Anyone who has seen quotes from the debates knows that this was a clearly expressed desire of some supporters of the statute. Other times they are more sophisticated. Correction Law 168-g (1) made the Sex Offender Registration Act applicable to anyone in prison, on probation or on parole as of January...
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