In People v Abney and Allen (2009 NY Slip Op 07668 10/27/09) the Court of Appeals considered two cases in which the defense was denied the right to introduce expert testimony on identification evidence. The Court applied the test it previously employed in People v Young (7 NY3d 40 [2006]) for determining whether such a ruling is error: was there was evidence which corroborated the identification evidence.

The Young standard in which a defendant’s right to present evidence is conditioned on the court’s perception of the strength of the People’s case appears to be in conflict with the holding of the United States Supreme Court in Holmes v South Carolina (547 U.S. 319 [2006]), that he right of a defendant to have a meaningful opportunity to present a complete defense cannot be conditioned of the perceived strength of a prosecutor's case.

But, as Monroe County Assistant Public Defender Jim Eckert points out, there is some good language in the decision which should be cited by counsel in other contexts. Specifically, in discussing whether the error of excluding the expert testimony in Abney was harmless the Court wrote that

"Finally, we do not consider the trial judge's error in Abney to have been harmless. While defendant's muddled alibi evidence was no doubt unhelpful to his cause with the jury, it is not overwhelmingly inculpatory either. And, of course, it is possible that defendant would not have pursued an alibi defense in the first place if Dr. Fulero had testified. " (emphasis supplied).

Thus, the Court recognized that the defendant’s strategy could have been altered by the court’s erroneous ruling and that the burden cannot be on the defendant to establish all of these consequences. In an analogous situation, the United States Supreme Court has held that whether a defendant’s confession was illegally admitted at trial and the defendant then testifies in his own defense, that testimony cannot be used at the re-trial, because it cannot be determined if the decision to testify was caused by the illegal admission of the confession. Harrison v United States, 392 US 219, 224-225 (1968). Quoting from the Court of Appeals decision in De Cicco v Schweizer (221 NY 431, 438 [1917]), the Court wrote that

It is, of course, difficult to unravel the many considerations that might have led the petitioner to take the witness stand at his former trial. But, having illegally placed his confessions before the jury, the Government can hardly demand a demonstration by the petitioner that he would not have testified as he did if his inadmissible confessions had not been used. ‘The springs of conduct are subtle and varied,’ Mr. Justice Cardozo once observed. ‘One who meddles with them must not insist upon too nice a measure of proof that the spring which he released was effective to the exclusion of all others.’ [citation omitted] Having ‘released the spring’ by using the petitioner's unlawfully obtained confessions against him, the Government must show that its illegal action did not induce his testimony.

Harrison v United States, 392 US 219, 224-225 (1968).

To read Justice Cardozo is to be humbled.

In People v Abney and Allen (2009 NY Slip Op 07668 10/27/09) the Court of Appeals considered two cases in which the defense was denied the right to introduce expert testimony on identification evidence. The Court applied the test it previously employed in People v Young (7 NY3d 40 [2006]) for determining whether such a ruling is error: was there was evidence which corroborated the identification evidence.

The Young standard in which a defendant’s right to present evidence is conditioned on the court’s perception of the strength of the People’s case appears to be in conflict with the holding of the United States Supreme Court in Holmes v South Carolina (547 U.S. 319 [2006]), that he right of a defendant to have a meaningful opportunity to present a complete defense cannot be conditioned of the perceived strength of a prosecutor's case.

But, as Monroe County Assistant Public Defender Jim Eckert points out, there is some good language in the decision which should be cited by counsel in other contexts. Specifically, in discussing whether the error of excluding the expert testimony in Abney was harmless the Court wrote that

"Finally, we do not consider the trial judge's error in Abney to have been harmless. While defendant's muddled alibi evidence was no doubt unhelpful to his cause with the jury, it is not overwhelmingly inculpatory either. And, of course, it is possible that defendant would not have pursued an alibi defense in the first place if Dr. Fulero had testified. " (emphasis supplied).

Thus, the Court recognized that the defendant’s strategy could have been altered by the court’s erroneous ruling and that the burden cannot be on the defendant to establish all of these consequences. In an analogous situation, the United States Supreme Court has held that whether a defendant’s confession was illegally admitted at trial and the defendant then testifies in his own defense, that testimony cannot be used at the re-trial, because it cannot be determined if the decision to testify was caused by the illegal admission of the confession. Harrison v United States, 392 US 219, 224-225 (1968). Quoting from the Court of Appeals decision in De Cicco v Schweizer (221 NY 431, 438 [1917]), the Court wrote that

It is, of course, difficult to unravel the many considerations that might have led the petitioner to take the witness stand at his former trial. But, having illegally placed his confessions before the jury, the Government can hardly demand a demonstration by the petitioner that he would not have testified as he did if his inadmissible confessions had not been used. ‘The springs of conduct are subtle and varied,’ Mr. Justice Cardozo once observed. ‘One who meddles with them must not insist upon too nice a measure of proof that the spring which he released was effective to the exclusion of all others.’ [citation omitted] Having ‘released the spring’ by using the petitioner's unlawfully obtained confessions against him, the Government must show that its illegal action did not induce his testimony.

Harrison v United States, 392 US 219, 224-225 (1968).

To read Justice Cardozo is to be humbled.

The decision in People v Sammy L. Swift (2009 NY Slip Op 07009 [4th Dept 10/2/09]) is a short one, and you really have to read it all to appreciate it, so here goes:

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law, the motion is denied and the judgment of conviction is reinstated.

Memorandum: On a prior appeal, we affirmed a judgment convicting defendant upon a jury verdict of murder in the second degree (Penal Law § 125.25 [3]) and robbery in the first degree (§ 160.15 [1]; People v Swift, 241 AD2d 949, lv denied 91 NY2d 881, 1013). The People appeal from an order granting defendant's motion to vacate the judgment of conviction on the ground of newly discovered evidence (see CPL 440.10 [1] [g]), i.e., post-trial DNA test results indicating that the blood found at the crime scene was exclusively that of the victim. We agree with the People that the DNA test results are not "of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant" (CPL 440.10 [1] [g]). At the trial, the People presented evidence that blood at the crime scene was consistent with both the victim's blood type and defendant's blood type. Although the People relied upon that evidence to corroborate the testimony of defendant's accomplices (see Swift, 241 AD2d 949), we conclude that the remaining nonaccomplice evidence tends to connect defendant to the robbery and murder and is sufficient "to assure that the accomplices have offered credible probative evidence" (People v Breland, 83 NY2d 286, 293). The contention of defendant in his pro se supplemental brief that the sister of the accomplices was herself an accomplice whose testimony required corroboration was not raised in the motion and thus is not properly before us (see generally People v Goodell, 221 AD2d 1009, lv denied 88 NY2d 848). We have considered the remaining contentions of defendant in his pro se supplemental brief and conclude that they are lacking in merit.

Although the facts in the decision are typically sparse, lets try to translate to more clearly see what is really going on here:

1. Defendant lost the direct appeal of his robbery/murder conviction.

2. At trial the People argued that the blood at the scene belonged to both the victim and the defendant.

3. This evidence corroborated the accomplice testimony - apparently the only other evidence linking defendant to the commission of the crime.

4. The accomplices' sister was an accomplice too, but since her status as an accomplice wasn't preserved, her testimony now becomes the only "non-accomplice" evidence, apart from the blood evidence, connecting defendant to the crime.

5. After trial, defendant was able to demonstrate that the blood at the scene, contrary to the People's theory at trial, belonged only to the victim.

6. Defendant argued that had the truth been known by the trial jury, this would have created a reasonable possibility of a more favorable verdict in a case where the only other evidence against the defendant was accomplice evidence.

7. The lower court agreed and reversed defendant's conviction.

8. The Appellate Division held that this would NOT create a reasonable possibility of a more favorable verdict because of the other evidence connecting defendant to the crime. What other evidence? Why the testimony of the accomplice/non-accomplice sister, of course.

See if you can identify the problems with this decision - it's like one of those drawings containing the hidden objects - there's always one more.

First, the court equates the existence of what it somewhat disingenuously characterizes as non-accomplice evidence - the sister's testimony (and if there was other non-accomplice evidence, we couldn't know it from the facts recited in the decision, so I think this characterization is fair) - with a failure by the defendant to demonstrate a reasonable possibility of a more favorable verdict. But to prevail at this stage, the defendant need not prove that he WOULD prevail at trial, only that he MIGHT, in light of the new evidence. That the People may still have some evidence in their favor doesn't decide this question.

Another problem? The trial court - who, remember, sat through the trial, heard all the proof, saw the witnesses, and presided over the 440 hearing - is generally to be accorded "great deference," the cases so holding are legion, but only when ruling in favor of the People?

According to this decision, the prosecution's (untruthful) argument at trial that defendant's blood was present at the crime scene wasn't a significant consideration during jury deliberations? Do you think that is true? Do you think your average juror, if asked, would think so? Do you think this jury thought so?

Would the decision have been the same if defendant were convicted of grand larceny? This looks an awfully lot like the application of an Extremely Bad Man exception to the Due Process Clause.

Imagine that you're a second-year law student. This is the case you've been assigned to brief for today's class and you are tasked with defending the court's reasoning. Ready? Go . . .

The decision in People v Sammy L. Swift (2009 NY Slip Op 07009 [4th Dept 10/2/09]) is a short one, and you really have to read it all to appreciate it, so here goes:

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law, the motion is denied and the judgment of conviction is reinstated.

Memorandum: On a prior appeal, we affirmed a judgment convicting defendant upon a jury verdict of murder in the second degree (Penal Law § 125.25 [3]) and robbery in the first degree (§ 160.15 [1]; People v Swift, 241 AD2d 949, lv denied 91 NY2d 881, 1013). The People appeal from an order granting defendant's motion to vacate the judgment of conviction on the ground of newly discovered evidence (see CPL 440.10 [1] [g]), i.e., post-trial DNA test results indicating that the blood found at the crime scene was exclusively that of the victim. We agree with the People that the DNA test results are not "of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant" (CPL 440.10 [1] [g]). At the trial, the People presented evidence that blood at the crime scene was consistent with both the victim's blood type and defendant's blood type. Although the People relied upon that evidence to corroborate the testimony of defendant's accomplices (see Swift, 241 AD2d 949), we conclude that the remaining nonaccomplice evidence tends to connect defendant to the robbery and murder and is sufficient "to assure that the accomplices have offered credible probative evidence" (People v Breland, 83 NY2d 286, 293). The contention of defendant in his pro se supplemental brief that the sister of the accomplices was herself an accomplice whose testimony required corroboration was not raised in the motion and thus is not properly before us (see generally People v Goodell, 221 AD2d 1009, lv denied 88 NY2d 848). We have considered the remaining contentions of defendant in his pro se supplemental brief and conclude that they are lacking in merit.

Although the facts in the decision are typically sparse, lets try to translate to more clearly see what is really going on here:

1. Defendant lost the direct appeal of his robbery/murder conviction.

2. At trial the People argued that the blood at the scene belonged to both the victim and the defendant.

3. This evidence corroborated the accomplice testimony - apparently the only other evidence linking defendant to the commission of the crime.

4. The accomplices' sister was an accomplice too, but since her status as an accomplice wasn't preserved, her testimony now becomes the only "non-accomplice" evidence, apart from the blood evidence, connecting defendant to the crime.

5. After trial, defendant was able to demonstrate that the blood at the scene, contrary to the People's theory at trial, belonged only to the victim.

6. Defendant argued that had the truth been known by the trial jury, this would have created a reasonable possibility of a more favorable verdict in a case where the only other evidence against the defendant was accomplice evidence.

7. The lower court agreed and reversed defendant's conviction.

8. The Appellate Division held that this would NOT create a reasonable possibility of a more favorable verdict because of the other evidence connecting defendant to the crime. What other evidence? Why the testimony of the accomplice/non-accomplice sister, of course.

See if you can identify the problems with this decision - it's like one of those drawings containing the hidden objects - there's always one more.

First, the court equates the existence of what it somewhat disingenuously characterizes as non-accomplice evidence - the sister's testimony (and if there was other non-accomplice evidence, we couldn't know it from the facts recited in the decision, so I think this characterization is fair) - with a failure by the defendant to demonstrate a reasonable possibility of a more favorable verdict. But to prevail at this stage, the defendant need not prove that he WOULD prevail at trial, only that he MIGHT, in light of the new evidence. That the People may still have some evidence in their favor doesn't decide this question.

Another problem? The trial court - who, remember, sat through the trial, heard all the proof, saw the witnesses, and presided over the 440 hearing - is generally to be accorded "great deference," the cases so holding are legion, but only when ruling in favor of the People?

According to this decision, the prosecution's (untruthful) argument at trial that defendant's blood was present at the crime scene wasn't a significant consideration during jury deliberations? Do you think that is true? Do you think your average juror, if asked, would think so? Do you think this jury thought so?

Would the decision have been the same if defendant were convicted of grand larceny? This looks an awfully lot like the application of an Extremely Bad Man exception to the Due Process Clause.

Imagine that you're a second-year law student. This is the case you've been assigned to brief for today's class and you are tasked with defending the court's reasoning. Ready? Go . . .

In rejecting the People's appeal from the dismissal of an indictment for Reckless Endangerment in the First Degree, the Court in People v Hatch (2009 NY Slip Op 07075 [4th Dept 10/02/09]) held that

Defendant's actions in driving a vehicle off a street and "doing donuts" with the vehicle in an open field at night with the headlights on do not constitute the "hallmarks of wanton recklessness necessary to demonstrate circumstances evincing a depraved indifference to human life' " (People v Dudley, 31 AD3d 264, 264, lv denied 7 NY3d 866; cf. People v Gomez, 65 NY2d 9, 10-12; People v Mooney, 62 AD3d 725; People v Robinson, 16 AD3d 768, 769-770, lv denied 4 NY3d 856). Further, although there was evidence that defendant drove in the general direction of two witnesses, we conclude that such evidence is insufficient to establish that defendant's conduct created a grave risk of death to those witnesses (cf. Robinson, 16 AD3d at 769-770; People v Williams, 158 AD2d 253, 253-254, lv denied 75 NY2d 971).

In rejecting the People's appeal from the dismissal of an indictment for Reckless Endangerment in the First Degree, the Court in People v Hatch (2009 NY Slip Op 07075 [4th Dept 10/02/09]) held that

Defendant's actions in driving a vehicle off a street and "doing donuts" with the vehicle in an open field at night with the headlights on do not constitute the "hallmarks of wanton recklessness necessary to demonstrate circumstances evincing a depraved indifference to human life' " (People v Dudley, 31 AD3d 264, 264, lv denied 7 NY3d 866; cf. People v Gomez, 65 NY2d 9, 10-12; People v Mooney, 62 AD3d 725; People v Robinson, 16 AD3d 768, 769-770, lv denied 4 NY3d 856). Further, although there was evidence that defendant drove in the general direction of two witnesses, we conclude that such evidence is insufficient to establish that defendant's conduct created a grave risk of death to those witnesses (cf. Robinson, 16 AD3d at 769-770; People v Williams, 158 AD2d 253, 253-254, lv denied 75 NY2d 971).

In People v Darrisaw (2009 NY Slip Op 06992 [4th Dept 10/2/09]), the defendant appealed from a judgment convicting him upon a jury verdict of aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 [3] [a] [ii]). The Court reversed because the convciton was based on an Affidavit of Regularity/Proof of Mailing from the Department of Motor Vehicles, whoch denied the defendat his right to confrontation:

In accordance with our decision in People v Pacer (21 AD3d 192, affd 6 NY3d 504), we conclude that the "Affidavit of Regularity/Proof of Mailing" (affidavit) prepared by an employee of the Department of Motor Vehicles (DMV) constituted testimonial evidence that did not fall within the business records exception to the hearsay rule (see CPLR 4518 [a]; CPL 60.10). The affidavit served as "a direct accusation of an essential element of the crime" (Pacer, 6 NY3d at 510) and, indeed, it was the only evidence suggesting that defendant had the requisite notice of his driver's license suspensions. Defendant's opportunity to cross-examine a DMV employee who was not directly involved in sending out suspension notices and who had no personal knowledge of defendant's driving record was insufficient to protect defendant's Sixth Amendment right of confrontation (see Crawford v Washington, 541 US 36). We therefore reverse the judgment and grant a new trial on count two of the indictment.

By contrast, in People v Bush (2009 NY Slip Op 07066 [4th Dept 10/2/09]) the Court held that

Contrary to the contention of defendant, his right of confrontation was not violated by the admission in evidence of a certified abstract of a registration record of the New York State Department of Motor Vehicles. The "various indicia of testimoniality" are not present in the registration record (People v Rawlins, 10 NY3d 136, 151). Rather, the registration record contains only objective facts, its contents are not directly accusatory, and it does not reflect "the exercise of fallible human judgment' " (People v Freycinet, 11 NY3d 38, 41). Similarly, the accompanying affidavit refers only to the authenticity of the registration record and its use in the regular course of business, and it contains no statement concerning the role of the registration record in the case against defendant (cf. People v Pacer, 6 NY3d 504, 510-512).

In People v Darrisaw (2009 NY Slip Op 06992 [4th Dept 10/2/09]), the defendant appealed from a judgment convicting him upon a jury verdict of aggravated unlicensed operation of a motor vehicle in the first degree (Vehicle and Traffic Law § 511 [3] [a] [ii]). The Court reversed because the convciton was based on an Affidavit of Regularity/Proof of Mailing from the Department of Motor Vehicles, whoch denied the defendat his right to confrontation:

In accordance with our decision in People v Pacer (21 AD3d 192, affd 6 NY3d 504), we conclude that the "Affidavit of Regularity/Proof of Mailing" (affidavit) prepared by an employee of the Department of Motor Vehicles (DMV) constituted testimonial evidence that did not fall within the business records exception to the hearsay rule (see CPLR 4518 [a]; CPL 60.10). The affidavit served as "a direct accusation of an essential element of the crime" (Pacer, 6 NY3d at 510) and, indeed, it was the only evidence suggesting that defendant had the requisite notice of his driver's license suspensions. Defendant's opportunity to cross-examine a DMV employee who was not directly involved in sending out suspension notices and who had no personal knowledge of defendant's driving record was insufficient to protect defendant's Sixth Amendment right of confrontation (see Crawford v Washington, 541 US 36). We therefore reverse the judgment and grant a new trial on count two of the indictment.

By contrast, in People v Bush (2009 NY Slip Op 07066 [4th Dept 10/2/09]) the Court held that

Contrary to the contention of defendant, his right of confrontation was not violated by the admission in evidence of a certified abstract of a registration record of the New York State Department of Motor Vehicles. The "various indicia of testimoniality" are not present in the registration record (People v Rawlins, 10 NY3d 136, 151). Rather, the registration record contains only objective facts, its contents are not directly accusatory, and it does not reflect "the exercise of fallible human judgment' " (People v Freycinet, 11 NY3d 38, 41). Similarly, the accompanying affidavit refers only to the authenticity of the registration record and its use in the regular course of business, and it contains no statement concerning the role of the registration record in the case against defendant (cf. People v Pacer, 6 NY3d 504, 510-512).

In People v Kobza (2009 NY Slip Op 06948 [4th Dept 10/02/09]) the Court held that the defendant's expectation in the privacy of his hotel room expired when he did not check out by check out time because he was in police custody:

We reject the contention of defendant that Supreme Court erred in refusing to suppress two incriminating letters that the police found in a hotel room. Defendant had the burden of establishing that he had a legitimate expectation of privacy in the hotel room that was searched by the police (see People v Ramirez-Portoreal, 88 NY2d 99, 108), and he failed to meet that burden. Inasmuch as defendant failed to check out of the hotel by the required time, he "lost his [legitimate] expectation of privacy in the hotel room and its contents, and the [owner] of the hotel had the authority to consent to the search" by the police (People v D'Antuono, 306 AD2d 890, lv denied 100 NY2d 593, 641). That search was not rendered illegal by the fact that defendant's tenancy expired while defendant was detained after having been arrested.

In People v Kobza (2009 NY Slip Op 06948 [4th Dept 10/02/09]) the Court held that the defendant's expectation in the privacy of his hotel room expired when he did not check out by check out time because he was in police custody:

We reject the contention of defendant that Supreme Court erred in refusing to suppress two incriminating letters that the police found in a hotel room. Defendant had the burden of establishing that he had a legitimate expectation of privacy in the hotel room that was searched by the police (see People v Ramirez-Portoreal, 88 NY2d 99, 108), and he failed to meet that burden. Inasmuch as defendant failed to check out of the hotel by the required time, he "lost his [legitimate] expectation of privacy in the hotel room and its contents, and the [owner] of the hotel had the authority to consent to the search" by the police (People v D'Antuono, 306 AD2d 890, lv denied 100 NY2d 593, 641). That search was not rendered illegal by the fact that defendant's tenancy expired while defendant was detained after having been arrested.

Although counter intuitive, there now exists irrefutable evidence that people falsely confess to having committed serious crimes. Indeed in about a quarter of all wrongful convictions cleared by DNA evidence there had been a false confession (see, Innocence Project -Understand the Causes). Included in this group are cases in which the Fourth Department had affirmed the conviction despite a challenge to the voluntariness of the confession (See, e.g., People v Warney, 299 AD2d 956, 957, lv denied 99 NY2d 633 in which a man was wrongfully convicted and incarcerated for 10 years on the basis of a false confession (See). What's more studies have demonstrated that false confessions are induced by certain interrogation techniques. A useful listing of articles on this topic is available here.

One means to reduce the problem of jurors incorrectly assuming that people would not falsely confess to serious crimes would be to permit expert witnesses to explain the studies on the this topic. This would be similar to the rulings permitting experts to testify that the failure to complain of a rape is not unusual. In People v Taylor and Banks (75 NY2d 277 [1990]) experts have been permitted to testify about how rape trauma syndrome is a recently recognized psychological disorder that can cause some rape victims to appear calm and relaxed after their attacks and lead them to delay reporting their rapes. The Court explained that its ruling was intended as a legal ounterweight to jurors who have misinterpreted such symptoms as evidence that the victim consented to sexual intercourse.

Why is there perceived less of a need to inform jurors of the psychological aspects of interrogation techniques that have been shown to lead to a false confessions?

The Fourth Department apparently sees juror misconceptions over silence about rape as different than juor miscopceptions about false confessions. In People v Bean (2009 NY Slip Op 06947 [4th Dept 102/09]) the defendant contended that the court erred in precluding the testimony of his expert witness who, according to defendant, would have provided general testimony concerning police interrogation techniques and false confessions. Rejectiong this argument, the Fourth Department held that

The court did not abuse its discretion in determining that the expert's testimony would not be relevant in view of the facts of this case (see generally People v Young, 7 NY3d 40, 44-45; People v Lee, 96 NY2d 157, 162).

The Court did not state whether under other circumstances it would find an abuse of discretion in excluding this testimony.

Although counter intuitive, there now exists irrefutable evidence that people falsely confess to having committed serious crimes. Indeed in about a quarter of all wrongful convictions cleared by DNA evidence there had been a false confession (see, Innocence Project -Understand the Causes). Included in this group are cases in which the Fourth Department had affirmed the conviction despite a challenge to the voluntariness of the confession (See, e.g., People v Warney, 299 AD2d 956, 957, lv denied 99 NY2d 633 in which a man was wrongfully convicted and incarcerated for 10 years on the basis of a false confession (See). What's more studies have demonstrated that false confessions are induced by certain interrogation techniques. A useful listing of articles on this topic is available here.

One means to reduce the problem of jurors incorrectly assuming that people would not falsely confess to serious crimes would be to permit expert witnesses to explain the studies on the this topic. This would be similar to the rulings permitting experts to testify that the failure to complain of a rape is not unusual. In People v Taylor and Banks (75 NY2d 277 [1990]) experts have been permitted to testify about how rape trauma syndrome is a recently recognized psychological disorder that can cause some rape victims to appear calm and relaxed after their attacks and lead them to delay reporting their rapes. The Court explained that its ruling was intended as a legal ounterweight to jurors who have misinterpreted such symptoms as evidence that the victim consented to sexual intercourse.

Why is there perceived less of a need to inform jurors of the psychological aspects of interrogation techniques that have been shown to lead to a false confessions?

The Fourth Department apparently sees juror misconceptions over silence about rape as different than juor miscopceptions about false confessions. In People v Bean (2009 NY Slip Op 06947 [4th Dept 102/09]) the defendant contended that the court erred in precluding the testimony of his expert witness who, according to defendant, would have provided general testimony concerning police interrogation techniques and false confessions. Rejectiong this argument, the Fourth Department held that

The court did not abuse its discretion in determining that the expert's testimony would not be relevant in view of the facts of this case (see generally People v Young, 7 NY3d 40, 44-45; People v Lee, 96 NY2d 157, 162).

The Court did not state whether under other circumstances it would find an abuse of discretion in excluding this testimony.

The Fourth Department issued decisions on October 2, 2009. In three of the criminal appeals (People v Bean, 2009 NY Slip Op 06947 [4th Dept 10/2/09]; People v Laing, 2009 NY Slip Op 06906 [4th Dept 10/2/09]; People v Parks, 2009 NY Slip Op 06995 [4th Dept 10/2/09] the Court noted that the trial attorney had failed to renew the motion for a trial order of dismissal (TOD motion) as has been required, at least since the 2001 decision of the Court of Appeals in People v Hines,97 NY2d 56, 61, rearg denied 97 NY2d 678 (2001).

One might think that the failure to preserve for review the issue of sufficiency of the evidence when the evidence was insufficient would constitute ineffective assistance of counsel, since the consequence of the failure to comply with the preservation requirements set forth by the Court of Appeals eight years ago in Hines is that the defendant remains incarcerated for a crime not proved. The Appellate Division, Fourth Department does not agree. In Parks the Court rejected a claim that the failure to renew the TOD motion is ineffective, holding that

Contrary to defendant's further contention, defense counsel was not ineffective in failing to renew the motion for a trial order of dismissal (see People v Bassett, 55 AD3d 1434, 1438, lv denied 11 NY3d 922), nor was she ineffective in failing to make objections that "would have been unavailing" (People v Guerrero, 22 AD3d 266, 267, lv denied 5 NY3d 882). Viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of the representation, we conclude that defense counsel provided meaningful representation (see People v Baldi, 54 NY2d 137, 147).

One wonders if Mr. Parks agrees that he received meaningful representation.

The Fourth Department issued decisions on October 2, 2009. In three of the criminal appeals (People v Bean, 2009 NY Slip Op 06947 [4th Dept 10/2/09]; People v Laing, 2009 NY Slip Op 06906 [4th Dept 10/2/09]; People v Parks, 2009 NY Slip Op 06995 [4th Dept 10/2/09] the Court noted that the trial attorney had failed to renew the motion for a trial order of dismissal (TOD motion) as has been required, at least since the 2001 decision of the Court of Appeals in People v Hines,97 NY2d 56, 61, rearg denied 97 NY2d 678 (2001).

One might think that the failure to preserve for review the issue of sufficiency of the evidence when the evidence was insufficient would constitute ineffective assistance of counsel, since the consequence of the failure to comply with the preservation requirements set forth by the Court of Appeals eight years ago in Hines is that the defendant remains incarcerated for a crime not proved. The Appellate Division, Fourth Department does not agree. In Parks the Court rejected a claim that the failure to renew the TOD motion is ineffective, holding that

Contrary to defendant's further contention, defense counsel was not ineffective in failing to renew the motion for a trial order of dismissal (see People v Bassett, 55 AD3d 1434, 1438, lv denied 11 NY3d 922), nor was she ineffective in failing to make objections that "would have been unavailing" (People v Guerrero, 22 AD3d 266, 267, lv denied 5 NY3d 882). Viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of the representation, we conclude that defense counsel provided meaningful representation (see People v Baldi, 54 NY2d 137, 147).

One wonders if Mr. Parks agrees that he received meaningful representation.