Wednesday, September 24, 2008

Renewal Required

The need to renew previously made requests has been in the news recently with lots of reminders that if you don't a request to be on the "Do Not Call Registry" you can expect a bunch of unwanted phone calls ( Example). And for years New York courts have been reminding us, in not quite so friendly a fashion, a defendant's legal sufficiency arguments are not properly preserved for appellate review unless a motion for a trial order of dismissal is renewed at the close of all proof, including the defendant's (Here).

The impact of this requirement to renew TOD motions if the defense puts on any proof was highlighted again by two decisions of the Appellate Division, Fourth Department issued on September 28th.

In People v Rodriguez (2007 NY Slip Op 07123)(Here) a depraved murder conviction was reversed and indictment dismissed where the Court held

that there is no valid line of reasoning and permissible inferences that could have led the jury to conclude that his conduct was reckless rather than intentional, particularly in view of the number and severity of the wounds inflicted on the victim


In Rodriguez, the evidence at trial

included forensic testimony establishing that defendant stabbed the victim eight times and that four stab wounds punctured her lungs and two struck her heart.


By contrast, in People v Wright (2007 NYSlipOp 07167)(Here), in which the defendant contended
that the evidence was legally insufficient to support the crime of depraved indifference murder because the People failed to establish the uncommon brutality and utter wantonness required for that crime, the Court held that

By failing to renew his motion to dismiss after presenting evidence, defendant failed to preserve that contention for our review (see People v Lane, 7 NY3d 888, 889; see also People v Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678).

That was the same type of claim that the Court reversed on in People v Casper (Here) last term.

As to the claim that there could be no trial strategy justifying the defense counsel's ignoring the long established requirements of Hines, the Court wrote

We reject the contention of defendant that defense counsel's failure to renew his dismissal motion after he presented evidence amounted to ineffective assistance of counsel.

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