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 them without counsel. The Court of Appeals questioned whether the prior counsel was really representing the defendant on the murder (in which he was a suspect), or merely on the robbery which prompted defendant to co-operate on the murder. The failure of the defendant to make clear at the Huntley hearing that the prior representation was on both matters rendered the question both unpreserved and unclear on the record because “we cannot say that no evidence the People might have presented would lead us to hold otherwise”. This is an interesting formulation, as we also cannot say that no evidence the People might have presented would lead a court to hold that two plus two is a fish stick dipped in custard. Three judges dissented, saying that the attorney who was talking to the police on behalf of the defendant about a homicide and a robbery was representing him on the homicide and on the robbery, and not acting as his lawyer on the robbery and as his personal masseuse and haberdasher on the homicide.
This case also stands for the proposition that if your client is a suspect in a murder, don’t take him to the police to talk about it.
Thursday, June 17, 2010
Right 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 them without counsel. The Court of Appeals questioned whether the prior counsel was really representing the defendant on the murder (in which he was a suspect), or merely on the robbery which prompted defendant to co-operate on the murder. The failure of the defendant to make clear at the Huntley hearing that the prior representation was on both matters rendered the question both unpreserved and unclear on the record because “we cannot say that no evidence the People might have presented would lead us to hold otherwise”. This is an interesting formulation, as we also cannot say that no evidence the People might have presented would lead a court to hold that two plus two is a fish stick dipped in custard. Three judges dissented, saying that the attorney who was talking to the police on behalf of the defendant about a homicide and a robbery was representing him on the homicide and on the robbery, and not acting as his lawyer on the robbery and as his personal masseuse and haberdasher on the homicide.
This case also stands for the proposition that if your client is a suspect in a murder, don’t take him to the police to talk about it.
Here, defendant had spoken to police - in the presence of counsel - about the homicide in question. Three years later, he spoke to them without counsel. The Court of Appeals questioned whether the prior counsel was really representing the defendant on the murder (in which he was a suspect), or merely on the robbery which prompted defendant to co-operate on the murder. The failure of the defendant to make clear at the Huntley hearing that the prior representation was on both matters rendered the question both unpreserved and unclear on the record because “we cannot say that no evidence the People might have presented would lead us to hold otherwise”. This is an interesting formulation, as we also cannot say that no evidence the People might have presented would lead a court to hold that two plus two is a fish stick dipped in custard. Three judges dissented, saying that the attorney who was talking to the police on behalf of the defendant about a homicide and a robbery was representing him on the homicide and on the robbery, and not acting as his lawyer on the robbery and as his personal masseuse and haberdasher on the homicide.
This case also stands for the proposition that if your client is a suspect in a murder, don’t take him to the police to talk about it.
Tuesday, May 25, 2010
To understand the need for a bill of particulars it helps to first review the history of indictments in New York:
In People v. Iannone, 45 N.Y. 2d 589 (1978) the Court of Appeals reviewed the history of the use and purpose of indictments. The right to be prosecuted by indictment is guaranteed by section 6 of article 1 of the NY State Constitution. No particular form is constitutionally mandated. The Court stated in Iannone, "The requirement of indictment by Grand Jury is intended to prevent the people of this State from potentially oppressive excesses by the agents of the government in the exercise of the prosecutorial authority vested in the state (cite omitted)."
The Court noted that an indictment has traditionally served several purposes. "First and foremost, an indictment has been considered as the necessary method of providing the defendant with fair notice of the accusations made against him, so that he will be able to prepare a defense. (cites omitted). This function of the indictment is founded not upon the right to indictment by a Grand Jury, but rather on the notice requirement of section 6 of article I of our State Constitution and presumably that of the Sixth Amendment to the Federal Constitution as well. Achievement of this purpose historically involved both a legal and a factual statement: normally the indictment has been required to both charge all the legally material elements of the crime of which defendant is accused, and state that defendant in fact committed the acts which comprise those elements."
The Court continued by recognizing that another traditional function of the indictment has been to provide some means of ensuring that the crime for which the defendant is brought to trial is in fact one for which he was indicted by the Grand Jury, rather than some alternative seized upon by the prosecution in light of subsequently discovered evidence. (When the acts vary from what the Grand Jury indicted on, that is called...you guessed it...variance!)
Another purpose of the indictment as addressed in Iannone is the "proper means of indicating just what crime or crimes defendant has been tried for, in order to avoid subsequent attempts to retry him for the same crime or crimes (cite omitted)." (Think: double jeopardy)
The Court noted that under common law (before the Code of Criminal Procedure which preceded the Criminal Procedure Law) "the indictment was an arcane and intricate work of art which all too often served to mystify rather than to inform defendants."
Then along came the Code of Criminal Procedure in 1881. The indictment requirements were simplified - the Code only required a description of the section of the law a defendant was alleged to have violated. Then along came the CPL which replaced the Code. One reason for the change was that the indictment under the Code "often told the accused little about the nature of the crime he was accused of committing."
Under the Code an indictment did not provide much information to a defendant, but the Court of Appeals found that the defects in the simplified indictment were alleviated by the fact a defendant could demand a bill of particulars, which was a right under common law but not codified.
The CPL codified the Bill of Particulars rules (CPL 200.95). So an indictment may still be a fairly simple description of the law the defendant is alleged to have violated and the conduct which constituted the violation, but the right to a bill of particulars is considered the antidote to a vague indictment.
Here's the money quote: "Any effort to leave a defendant in ignorance of the substance of the accusation until the time of trial must be firmly rebuffed. This is especially so where the indictment itself provides a paucity of information. In such cases, the court must be vigilant in safeguarding the defendant's rights to a bill of particulars and to effective discovery."
PRACTICE TIPS
The BOP statute, CPL 200.95, sets forth a definition of the bill of particulars and procedures relating to making a request and getting a court to enforce it. Pursuant to CPL 200.95(1)(a), "(a) 'Bill of particulars' is a written statement by the prosecutor specifying....items of factual information which are not recited in the indictment and which pertain to the offense charged and including the substance of each defendant's conduct encompassed by the charge which the people intend to prove at trial on there direct case, and whether the people intend to prove that the defendant acted as principal or accomplice or both...However, the prosecutor shall not be required to include in the bill of particulars matters of evidence relating to how the people intend to prove the elements of the offense charged or how the people intend to prove any item of factual information included in the bill of particulars."
Think of the definition as a floor, not a ceiling. In other words, consider whether your indictment fails to sufficiently specify conduct, a crime, or leaves open the possibility that more than one crime is encompassed by a count of the indictment (duplicity).
When a prosecutor responds to an argument that we are not entitled to a bill or specific responses in the bill because we received discovery, they are a little right and more wrong. Iannone notes that the discovery statute helps a defendant to have more notice than in the bad old days. But discovery does not tell us what the grand jury indicted on. A bill of particulars is necessary for that. And sometimes a Bill can't fix a broken indictment (or local court accusatory instrument). If the indictment cannot be cured by the Bill, you should move to dismiss the indictment.
So the bill of particulars, instead of being a waste of several good pieces of paper, can be a document that provides greater detail and notice about the charges a defendant faces and the conduct s/he is alleged to have engaged in. But it will only do that if we ask it to.
Bills of particulars are especially important in sex offenses. If there is a large range of time in which the offenses are alleged to have occurred, we should be requesting greater detail in the request for the bill. But bills are important in many other cases too - assaults and homicides. Consider asking about causation and injuries. And which offense occurred at which time in relation to others. Bills can be extremely important in all sorts of cases, and the more creative you are, the more likely you will be to succeed in either having charges dismissed based on insufficient notice contained in your accusatories and bills, or getting more detail to prepare for trial.
In a recent case the Judge ordered that the DA provide a response to the Bill of Particulars. When she did, she alleged acts that were not heard by the Grand Jury. The indictment was defective and not cured by the Bill, so the indictment was dismissed. (Okay, so the DA re-indicted... but still.)
A request for a Bill of Particulars must be made within 30 days of arraignment (CPL 200.95(3). If you fail to serve your request in a timely manner, you may waive the right to complain later that the indictment was defective: See, People v. Duell, 266 A.D.2d 649.
A prosecutor has to respond within fifteen days of service. If the prosecutor fails to respond, you may move in your motion to compel a response.
Although misdemeanor accusatories are not based on grand jury proceedings (usually), you are entitled to a Bill of Particulars in those cases too. And failure to provide sufficient notice of conduct in the misdemeanor accusatory and Bill can result in dismissal of a misdemeanor charge. See, People v. Sedlock, 8 N.Y.3d 535.
Prepared by Jill Paperno, Second Assistant Monroe County Public Defender
In People v. Iannone, 45 N.Y. 2d 589 (1978) the Court of Appeals reviewed the history of the use and purpose of indictments. The right to be prosecuted by indictment is guaranteed by section 6 of article 1 of the NY State Constitution. No particular form is constitutionally mandated. The Court stated in Iannone, "The requirement of indictment by Grand Jury is intended to prevent the people of this State from potentially oppressive excesses by the agents of the government in the exercise of the prosecutorial authority vested in the state (cite omitted)."
The Court noted that an indictment has traditionally served several purposes. "First and foremost, an indictment has been considered as the necessary method of providing the defendant with fair notice of the accusations made against him, so that he will be able to prepare a defense. (cites omitted). This function of the indictment is founded not upon the right to indictment by a Grand Jury, but rather on the notice requirement of section 6 of article I of our State Constitution and presumably that of the Sixth Amendment to the Federal Constitution as well. Achievement of this purpose historically involved both a legal and a factual statement: normally the indictment has been required to both charge all the legally material elements of the crime of which defendant is accused, and state that defendant in fact committed the acts which comprise those elements."
The Court continued by recognizing that another traditional function of the indictment has been to provide some means of ensuring that the crime for which the defendant is brought to trial is in fact one for which he was indicted by the Grand Jury, rather than some alternative seized upon by the prosecution in light of subsequently discovered evidence. (When the acts vary from what the Grand Jury indicted on, that is called...you guessed it...variance!)
Another purpose of the indictment as addressed in Iannone is the "proper means of indicating just what crime or crimes defendant has been tried for, in order to avoid subsequent attempts to retry him for the same crime or crimes (cite omitted)." (Think: double jeopardy)
The Court noted that under common law (before the Code of Criminal Procedure which preceded the Criminal Procedure Law) "the indictment was an arcane and intricate work of art which all too often served to mystify rather than to inform defendants."
Then along came the Code of Criminal Procedure in 1881. The indictment requirements were simplified - the Code only required a description of the section of the law a defendant was alleged to have violated. Then along came the CPL which replaced the Code. One reason for the change was that the indictment under the Code "often told the accused little about the nature of the crime he was accused of committing."
Under the Code an indictment did not provide much information to a defendant, but the Court of Appeals found that the defects in the simplified indictment were alleviated by the fact a defendant could demand a bill of particulars, which was a right under common law but not codified.
The CPL codified the Bill of Particulars rules (CPL 200.95). So an indictment may still be a fairly simple description of the law the defendant is alleged to have violated and the conduct which constituted the violation, but the right to a bill of particulars is considered the antidote to a vague indictment.
Here's the money quote: "Any effort to leave a defendant in ignorance of the substance of the accusation until the time of trial must be firmly rebuffed. This is especially so where the indictment itself provides a paucity of information. In such cases, the court must be vigilant in safeguarding the defendant's rights to a bill of particulars and to effective discovery."
PRACTICE TIPS
The BOP statute, CPL 200.95, sets forth a definition of the bill of particulars and procedures relating to making a request and getting a court to enforce it. Pursuant to CPL 200.95(1)(a), "(a) 'Bill of particulars' is a written statement by the prosecutor specifying....items of factual information which are not recited in the indictment and which pertain to the offense charged and including the substance of each defendant's conduct encompassed by the charge which the people intend to prove at trial on there direct case, and whether the people intend to prove that the defendant acted as principal or accomplice or both...However, the prosecutor shall not be required to include in the bill of particulars matters of evidence relating to how the people intend to prove the elements of the offense charged or how the people intend to prove any item of factual information included in the bill of particulars."
Think of the definition as a floor, not a ceiling. In other words, consider whether your indictment fails to sufficiently specify conduct, a crime, or leaves open the possibility that more than one crime is encompassed by a count of the indictment (duplicity).
When a prosecutor responds to an argument that we are not entitled to a bill or specific responses in the bill because we received discovery, they are a little right and more wrong. Iannone notes that the discovery statute helps a defendant to have more notice than in the bad old days. But discovery does not tell us what the grand jury indicted on. A bill of particulars is necessary for that. And sometimes a Bill can't fix a broken indictment (or local court accusatory instrument). If the indictment cannot be cured by the Bill, you should move to dismiss the indictment.
So the bill of particulars, instead of being a waste of several good pieces of paper, can be a document that provides greater detail and notice about the charges a defendant faces and the conduct s/he is alleged to have engaged in. But it will only do that if we ask it to.
Bills of particulars are especially important in sex offenses. If there is a large range of time in which the offenses are alleged to have occurred, we should be requesting greater detail in the request for the bill. But bills are important in many other cases too - assaults and homicides. Consider asking about causation and injuries. And which offense occurred at which time in relation to others. Bills can be extremely important in all sorts of cases, and the more creative you are, the more likely you will be to succeed in either having charges dismissed based on insufficient notice contained in your accusatories and bills, or getting more detail to prepare for trial.
In a recent case the Judge ordered that the DA provide a response to the Bill of Particulars. When she did, she alleged acts that were not heard by the Grand Jury. The indictment was defective and not cured by the Bill, so the indictment was dismissed. (Okay, so the DA re-indicted... but still.)
A request for a Bill of Particulars must be made within 30 days of arraignment (CPL 200.95(3). If you fail to serve your request in a timely manner, you may waive the right to complain later that the indictment was defective: See, People v. Duell, 266 A.D.2d 649.
A prosecutor has to respond within fifteen days of service. If the prosecutor fails to respond, you may move in your motion to compel a response.
Although misdemeanor accusatories are not based on grand jury proceedings (usually), you are entitled to a Bill of Particulars in those cases too. And failure to provide sufficient notice of conduct in the misdemeanor accusatory and Bill can result in dismissal of a misdemeanor charge. See, People v. Sedlock, 8 N.Y.3d 535.
Prepared by Jill Paperno, Second Assistant Monroe County Public Defender
To understand the need for a bill of particulars it helps to first review the history of indictments in New York:
In People v. Iannone, 45 N.Y. 2d 589 (1978) the Court of Appeals reviewed the history of the use and purpose of indictments. The right to be prosecuted by indictment is guaranteed by section 6 of article 1 of the NY State Constitution. No particular form is constitutionally mandated. The Court stated in Iannone, "The requirement of indictment by Grand Jury is intended to prevent the people of this State from potentially oppressive excesses by the agents of the government in the exercise of the prosecutorial authority vested in the state (cite omitted)."
The Court noted that an indictment has traditionally served several purposes. "First and foremost, an indictment has been considered as the necessary method of providing the defendant with fair notice of the accusations made against him, so that he will be able to prepare a defense. (cites omitted). This function of the indictment is founded not upon the right to indictment by a Grand Jury, but rather on the notice requirement of section 6 of article I of our State Constitution and presumably that of the Sixth Amendment to the Federal Constitution as well. Achievement of this purpose historically involved both a legal and a factual statement: normally the indictment has been required to both charge all the legally material elements of the crime of which defendant is accused, and state that defendant in fact committed the acts which comprise those elements."
The Court continued by recognizing that another traditional function of the indictment has been to provide some means of ensuring that the crime for which the defendant is brought to trial is in fact one for which he was indicted by the Grand Jury, rather than some alternative seized upon by the prosecution in light of subsequently discovered evidence. (When the acts vary from what the Grand Jury indicted on, that is called...you guessed it...variance!)
Another purpose of the indictment as addressed in Iannone is the "proper means of indicating just what crime or crimes defendant has been tried for, in order to avoid subsequent attempts to retry him for the same crime or crimes (cite omitted)." (Think: double jeopardy)
The Court noted that under common law (before the Code of Criminal Procedure which preceded the Criminal Procedure Law) "the indictment was an arcane and intricate work of art which all too often served to mystify rather than to inform defendants."
Then along came the Code of Criminal Procedure in 1881. The indictment requirements were simplified - the Code only required a description of the section of the law a defendant was alleged to have violated. Then along came the CPL which replaced the Code. One reason for the change was that the indictment under the Code "often told the accused little about the nature of the crime he was accused of committing."
Under the Code an indictment did not provide much information to a defendant, but the Court of Appeals found that the defects in the simplified indictment were alleviated by the fact a defendant could demand a bill of particulars, which was a right under common law but not codified.
The CPL codified the Bill of Particulars rules (CPL 200.95). So an indictment may still be a fairly simple description of the law the defendant is alleged to have violated and the conduct which constituted the violation, but the right to a bill of particulars is considered the antidote to a vague indictment.
Here's the money quote: "Any effort to leave a defendant in ignorance of the substance of the accusation until the time of trial must be firmly rebuffed. This is especially so where the indictment itself provides a paucity of information. In such cases, the court must be vigilant in safeguarding the defendant's rights to a bill of particulars and to effective discovery."
PRACTICE TIPS
The BOP statute, CPL 200.95, sets forth a definition of the bill of particulars and procedures relating to making a request and getting a court to enforce it. Pursuant to CPL 200.95(1)(a), "(a) 'Bill of particulars' is a written statement by the prosecutor specifying....items of factual information which are not recited in the indictment and which pertain to the offense charged and including the substance of each defendant's conduct encompassed by the charge which the people intend to prove at trial on there direct case, and whether the people intend to prove that the defendant acted as principal or accomplice or both...However, the prosecutor shall not be required to include in the bill of particulars matters of evidence relating to how the people intend to prove the elements of the offense charged or how the people intend to prove any item of factual information included in the bill of particulars."
Think of the definition as a floor, not a ceiling. In other words, consider whether your indictment fails to sufficiently specify conduct, a crime, or leaves open the possibility that more than one crime is encompassed by a count of the indictment (duplicity).
When a prosecutor responds to an argument that we are not entitled to a bill or specific responses in the bill because we received discovery, they are a little right and more wrong. Iannone notes that the discovery statute helps a defendant to have more notice than in the bad old days. But discovery does not tell us what the grand jury indicted on. A bill of particulars is necessary for that. And sometimes a Bill can't fix a broken indictment (or local court accusatory instrument). If the indictment cannot be cured by the Bill, you should move to dismiss the indictment.
So the bill of particulars, instead of being a waste of several good pieces of paper, can be a document that provides greater detail and notice about the charges a defendant faces and the conduct s/he is alleged to have engaged in. But it will only do that if we ask it to.
Bills of particulars are especially important in sex offenses. If there is a large range of time in which the offenses are alleged to have occurred, we should be requesting greater detail in the request for the bill. But bills are important in many other cases too - assaults and homicides. Consider asking about causation and injuries. And which offense occurred at which time in relation to others. Bills can be extremely important in all sorts of cases, and the more creative you are, the more likely you will be to succeed in either having charges dismissed based on insufficient notice contained in your accusatories and bills, or getting more detail to prepare for trial.
In a recent case the Judge ordered that the DA provide a response to the Bill of Particulars. When she did, she alleged acts that were not heard by the Grand Jury. The indictment was defective and not cured by the Bill, so the indictment was dismissed. (Okay, so the DA re-indicted... but still.)
A request for a Bill of Particulars must be made within 30 days of arraignment (CPL 200.95(3). If you fail to serve your request in a timely manner, you may waive the right to complain later that the indictment was defective: See, People v. Duell, 266 A.D.2d 649.
A prosecutor has to respond within fifteen days of service. If the prosecutor fails to respond, you may move in your motion to compel a response.
Although misdemeanor accusatories are not based on grand jury proceedings (usually), you are entitled to a Bill of Particulars in those cases too. And failure to provide sufficient notice of conduct in the misdemeanor accusatory and Bill can result in dismissal of a misdemeanor charge. See, People v. Sedlock, 8 N.Y.3d 535.
Prepared by Jill Paperno, Second Assistant Monroe County Public Defender
In People v. Iannone, 45 N.Y. 2d 589 (1978) the Court of Appeals reviewed the history of the use and purpose of indictments. The right to be prosecuted by indictment is guaranteed by section 6 of article 1 of the NY State Constitution. No particular form is constitutionally mandated. The Court stated in Iannone, "The requirement of indictment by Grand Jury is intended to prevent the people of this State from potentially oppressive excesses by the agents of the government in the exercise of the prosecutorial authority vested in the state (cite omitted)."
The Court noted that an indictment has traditionally served several purposes. "First and foremost, an indictment has been considered as the necessary method of providing the defendant with fair notice of the accusations made against him, so that he will be able to prepare a defense. (cites omitted). This function of the indictment is founded not upon the right to indictment by a Grand Jury, but rather on the notice requirement of section 6 of article I of our State Constitution and presumably that of the Sixth Amendment to the Federal Constitution as well. Achievement of this purpose historically involved both a legal and a factual statement: normally the indictment has been required to both charge all the legally material elements of the crime of which defendant is accused, and state that defendant in fact committed the acts which comprise those elements."
The Court continued by recognizing that another traditional function of the indictment has been to provide some means of ensuring that the crime for which the defendant is brought to trial is in fact one for which he was indicted by the Grand Jury, rather than some alternative seized upon by the prosecution in light of subsequently discovered evidence. (When the acts vary from what the Grand Jury indicted on, that is called...you guessed it...variance!)
Another purpose of the indictment as addressed in Iannone is the "proper means of indicating just what crime or crimes defendant has been tried for, in order to avoid subsequent attempts to retry him for the same crime or crimes (cite omitted)." (Think: double jeopardy)
The Court noted that under common law (before the Code of Criminal Procedure which preceded the Criminal Procedure Law) "the indictment was an arcane and intricate work of art which all too often served to mystify rather than to inform defendants."
Then along came the Code of Criminal Procedure in 1881. The indictment requirements were simplified - the Code only required a description of the section of the law a defendant was alleged to have violated. Then along came the CPL which replaced the Code. One reason for the change was that the indictment under the Code "often told the accused little about the nature of the crime he was accused of committing."
Under the Code an indictment did not provide much information to a defendant, but the Court of Appeals found that the defects in the simplified indictment were alleviated by the fact a defendant could demand a bill of particulars, which was a right under common law but not codified.
The CPL codified the Bill of Particulars rules (CPL 200.95). So an indictment may still be a fairly simple description of the law the defendant is alleged to have violated and the conduct which constituted the violation, but the right to a bill of particulars is considered the antidote to a vague indictment.
Here's the money quote: "Any effort to leave a defendant in ignorance of the substance of the accusation until the time of trial must be firmly rebuffed. This is especially so where the indictment itself provides a paucity of information. In such cases, the court must be vigilant in safeguarding the defendant's rights to a bill of particulars and to effective discovery."
PRACTICE TIPS
The BOP statute, CPL 200.95, sets forth a definition of the bill of particulars and procedures relating to making a request and getting a court to enforce it. Pursuant to CPL 200.95(1)(a), "(a) 'Bill of particulars' is a written statement by the prosecutor specifying....items of factual information which are not recited in the indictment and which pertain to the offense charged and including the substance of each defendant's conduct encompassed by the charge which the people intend to prove at trial on there direct case, and whether the people intend to prove that the defendant acted as principal or accomplice or both...However, the prosecutor shall not be required to include in the bill of particulars matters of evidence relating to how the people intend to prove the elements of the offense charged or how the people intend to prove any item of factual information included in the bill of particulars."
Think of the definition as a floor, not a ceiling. In other words, consider whether your indictment fails to sufficiently specify conduct, a crime, or leaves open the possibility that more than one crime is encompassed by a count of the indictment (duplicity).
When a prosecutor responds to an argument that we are not entitled to a bill or specific responses in the bill because we received discovery, they are a little right and more wrong. Iannone notes that the discovery statute helps a defendant to have more notice than in the bad old days. But discovery does not tell us what the grand jury indicted on. A bill of particulars is necessary for that. And sometimes a Bill can't fix a broken indictment (or local court accusatory instrument). If the indictment cannot be cured by the Bill, you should move to dismiss the indictment.
So the bill of particulars, instead of being a waste of several good pieces of paper, can be a document that provides greater detail and notice about the charges a defendant faces and the conduct s/he is alleged to have engaged in. But it will only do that if we ask it to.
Bills of particulars are especially important in sex offenses. If there is a large range of time in which the offenses are alleged to have occurred, we should be requesting greater detail in the request for the bill. But bills are important in many other cases too - assaults and homicides. Consider asking about causation and injuries. And which offense occurred at which time in relation to others. Bills can be extremely important in all sorts of cases, and the more creative you are, the more likely you will be to succeed in either having charges dismissed based on insufficient notice contained in your accusatories and bills, or getting more detail to prepare for trial.
In a recent case the Judge ordered that the DA provide a response to the Bill of Particulars. When she did, she alleged acts that were not heard by the Grand Jury. The indictment was defective and not cured by the Bill, so the indictment was dismissed. (Okay, so the DA re-indicted... but still.)
A request for a Bill of Particulars must be made within 30 days of arraignment (CPL 200.95(3). If you fail to serve your request in a timely manner, you may waive the right to complain later that the indictment was defective: See, People v. Duell, 266 A.D.2d 649.
A prosecutor has to respond within fifteen days of service. If the prosecutor fails to respond, you may move in your motion to compel a response.
Although misdemeanor accusatories are not based on grand jury proceedings (usually), you are entitled to a Bill of Particulars in those cases too. And failure to provide sufficient notice of conduct in the misdemeanor accusatory and Bill can result in dismissal of a misdemeanor charge. See, People v. Sedlock, 8 N.Y.3d 535.
Prepared by Jill Paperno, Second Assistant Monroe County Public Defender
Tuesday, May 11, 2010
Court 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 held that the sentences imposed - on a plea of guilty - could not run consecutively, and therefore the matter would be remanded and the prosecution could move to vacate the plea as they didn't get their bargained-for sentence. The two Appellate Division dissenters (one of whom granted leave), agreed that the sentences could not run consecutively, but noted that the court was permitted to simply impose a sentence of one year, and that this course of action would be better. It specifically noted that the appellate court may "in its discretion" resentence instead of remand.
The Court of Appeals decision, read in light of the AD4th facts and decision, seems to me to hold that if the prosecution bargains for an illegally long sentence, that it does not have the right to withdraw permission for the plea - and have it vacated - when that illegality is cleared up. It may have been factually important that the defendant had served the entire one year which could have been legally imposed, but if so, that was not made clear in the CoA opinion.
This case seems significant to me, since in the past any illegal local court sentence was nonetheless enforceable so long as there was a state prison cell waiting for a defendant with the temerity to challenge that sentence. The Court of Appeals cited two cases. Matter of Kisloff v Covington, which held that where the defendant entered a plea to an attempted "E" with a promise of 1.5-3 (because everyone thought the attempt to commit an E was an E, not a misdemeanor) that the prosecution could not seek to vacate the plea. Matter of Campbell v Pearce also held that once a defendant has started his sentence the court cannot vacate the plea because jeopardy had attached.
Properly understood, I think this Court of Appeals decision that "County Court lacks the power to vacate the conviction or plea" removes the threat of state time from people who successfully challenge illegally severe local court sentences, and prevents vacating a plea induced by an illegally severe sentence, if that sentence has been commenced.
On review of the decision below, however, it looks important. Three Fourth Department judges had held that the sentences imposed - on a plea of guilty - could not run consecutively, and therefore the matter would be remanded and the prosecution could move to vacate the plea as they didn't get their bargained-for sentence. The two Appellate Division dissenters (one of whom granted leave), agreed that the sentences could not run consecutively, but noted that the court was permitted to simply impose a sentence of one year, and that this course of action would be better. It specifically noted that the appellate court may "in its discretion" resentence instead of remand.
The Court of Appeals decision, read in light of the AD4th facts and decision, seems to me to hold that if the prosecution bargains for an illegally long sentence, that it does not have the right to withdraw permission for the plea - and have it vacated - when that illegality is cleared up. It may have been factually important that the defendant had served the entire one year which could have been legally imposed, but if so, that was not made clear in the CoA opinion.
This case seems significant to me, since in the past any illegal local court sentence was nonetheless enforceable so long as there was a state prison cell waiting for a defendant with the temerity to challenge that sentence. The Court of Appeals cited two cases. Matter of Kisloff v Covington, which held that where the defendant entered a plea to an attempted "E" with a promise of 1.5-3 (because everyone thought the attempt to commit an E was an E, not a misdemeanor) that the prosecution could not seek to vacate the plea. Matter of Campbell v Pearce also held that once a defendant has started his sentence the court cannot vacate the plea because jeopardy had attached.
Properly understood, I think this Court of Appeals decision that "County Court lacks the power to vacate the conviction or plea" removes the threat of state time from people who successfully challenge illegally severe local court sentences, and prevents vacating a plea induced by an illegally severe sentence, if that sentence has been commenced.
Court 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 held that the sentences imposed - on a plea of guilty - could not run consecutively, and therefore the matter would be remanded and the prosecution could move to vacate the plea as they didn't get their bargained-for sentence. The two Appellate Division dissenters (one of whom granted leave), agreed that the sentences could not run consecutively, but noted that the court was permitted to simply impose a sentence of one year, and that this course of action would be better. It specifically noted that the appellate court may "in its discretion" resentence instead of remand.
The Court of Appeals decision, read in light of the AD4th facts and decision, seems to me to hold that if the prosecution bargains for an illegally long sentence, that it does not have the right to withdraw permission for the plea - and have it vacated - when that illegality is cleared up. It may have been factually important that the defendant had served the entire one year which could have been legally imposed, but if so, that was not made clear in the CoA opinion.
This case seems significant to me, since in the past any illegal local court sentence was nonetheless enforceable so long as there was a state prison cell waiting for a defendant with the temerity to challenge that sentence. The Court of Appeals cited two cases. Matter of Kisloff v Covington, which held that where the defendant entered a plea to an attempted "E" with a promise of 1.5-3 (because everyone thought the attempt to commit an E was an E, not a misdemeanor) that the prosecution could not seek to vacate the plea. Matter of Campbell v Pearce also held that once a defendant has started his sentence the court cannot vacate the plea because jeopardy had attached.
Properly understood, I think this Court of Appeals decision that "County Court lacks the power to vacate the conviction or plea" removes the threat of state time from people who successfully challenge illegally severe local court sentences, and prevents vacating a plea induced by an illegally severe sentence, if that sentence has been commenced.
On review of the decision below, however, it looks important. Three Fourth Department judges had held that the sentences imposed - on a plea of guilty - could not run consecutively, and therefore the matter would be remanded and the prosecution could move to vacate the plea as they didn't get their bargained-for sentence. The two Appellate Division dissenters (one of whom granted leave), agreed that the sentences could not run consecutively, but noted that the court was permitted to simply impose a sentence of one year, and that this course of action would be better. It specifically noted that the appellate court may "in its discretion" resentence instead of remand.
The Court of Appeals decision, read in light of the AD4th facts and decision, seems to me to hold that if the prosecution bargains for an illegally long sentence, that it does not have the right to withdraw permission for the plea - and have it vacated - when that illegality is cleared up. It may have been factually important that the defendant had served the entire one year which could have been legally imposed, but if so, that was not made clear in the CoA opinion.
This case seems significant to me, since in the past any illegal local court sentence was nonetheless enforceable so long as there was a state prison cell waiting for a defendant with the temerity to challenge that sentence. The Court of Appeals cited two cases. Matter of Kisloff v Covington, which held that where the defendant entered a plea to an attempted "E" with a promise of 1.5-3 (because everyone thought the attempt to commit an E was an E, not a misdemeanor) that the prosecution could not seek to vacate the plea. Matter of Campbell v Pearce also held that once a defendant has started his sentence the court cannot vacate the plea because jeopardy had attached.
Properly understood, I think this Court of Appeals decision that "County Court lacks the power to vacate the conviction or plea" removes the threat of state time from people who successfully challenge illegally severe local court sentences, and prevents vacating a plea induced by an illegally severe sentence, if that sentence has been commenced.
Wednesday, April 28, 2010
On Wednesday, April 28, 2010, two months after Freddie Peacock's 1976 rape conviction was vacated in Monroe County because DNA evidence established Peacock's innocence, the 1992 Monroe County murder conviction of Frank Sterling was vacated and the charge dismissed when DNA evidence and the confession of the real killer proved Mr. Sterling's innocence. (For a detailed account of the Frank Sterling case see this article and this article) The court vacated Mr. Sterling's conviction pursuant to a motion filed jointly by the Innocence Project, ETKS partner Donald M. Thompson, Dotan Weinman, of Weil Gotshal & Manges and the Monroe County District Attorney's Office.
As was the case with Mr. Peacock (see) the primary evidence against Mr. Sterling was a false confession. This confession was attacked as false at Mr. Sterling's trial at which Dr. Robert Goldstein testified that it was the product of suggestive hypnosis.
Additionally, since 1992 there was evidence that Mark Christie had accurately confessed to the murder for which Mr. Sterling was charged. And yet after Mr. Sterling was convicted, the court refused to even hold a hearing on a 330 motion based on the evidence of Mr. Christie's admissions. And then the Appellate Division, Fourth Department affirmed the conviction (209 AD2d 1006 [4th Dept 1994]), rejecting arguments that the confession was unreliable and that a hearing should have been ordered.
When more witnesses came forward with evidence that Christie had committed the murder a 440 motion was filed and denied. Again, the Appellate Division, Fourth Department affirmed the ruling denying the innocent Mr. Sterling a new trial (267 AD2d 1053 [4th Dept 1999]).
Mr. Sterling then moved, pursuant to CPL 440.30(1-a, for DNA testing. This motion was denied (6 Misc3d 712 [Mon Co 2004]), on a finding that "the defendant has failed to demonstrate that a reasonable probability exists that a more favorable outcome at trial would have been forthcoming had the results of any DNA testing of the aforementioned items been introduced at his trial." The Appellate Division, Fourth Department affirmed the ruling denying the innocent Mr. Sterling access to the evidence which would eventually help prove his innocence (37 AD3d 1158[4th Dept 2007]).
Ultimately, despite these court rulings, testing was done and Mr. Sterling's innocence was established. The courts' reliance on a false confession after a twelve hour interrogation, of which only 20 minutes were recorded, led to the repeated affirmance of a wrongful conviction. As a result, Mr. Sterling was in prison for 18 years for murder he did not commit. One continues to wonder when courts will acknowledge the obvious and develop a reluctance to credit statements obtained after unrecorded interrogations. False confessions are present in about a quarter of the wrongful convictions exonerated by DNA evidence (see).
Finally, I am proud to note that for the past 16 years Donald Thompson, my partner and hero, has been the attorney for Mr. Sterling. Don was also the attorney who successfully fought for the exoneration of Mr. Peacock and Douglas Warney (see). (In all three cases Don enlisted the excellent attorneys of the Innocence Project to join his efforts). Three innocent men incarcerated on false confessions and then freed, in part, due to Don's efforts.
As was the case with Mr. Peacock (see) the primary evidence against Mr. Sterling was a false confession. This confession was attacked as false at Mr. Sterling's trial at which Dr. Robert Goldstein testified that it was the product of suggestive hypnosis.
Additionally, since 1992 there was evidence that Mark Christie had accurately confessed to the murder for which Mr. Sterling was charged. And yet after Mr. Sterling was convicted, the court refused to even hold a hearing on a 330 motion based on the evidence of Mr. Christie's admissions. And then the Appellate Division, Fourth Department affirmed the conviction (209 AD2d 1006 [4th Dept 1994]), rejecting arguments that the confession was unreliable and that a hearing should have been ordered.
When more witnesses came forward with evidence that Christie had committed the murder a 440 motion was filed and denied. Again, the Appellate Division, Fourth Department affirmed the ruling denying the innocent Mr. Sterling a new trial (267 AD2d 1053 [4th Dept 1999]).
Mr. Sterling then moved, pursuant to CPL 440.30(1-a, for DNA testing. This motion was denied (6 Misc3d 712 [Mon Co 2004]), on a finding that "the defendant has failed to demonstrate that a reasonable probability exists that a more favorable outcome at trial would have been forthcoming had the results of any DNA testing of the aforementioned items been introduced at his trial." The Appellate Division, Fourth Department affirmed the ruling denying the innocent Mr. Sterling access to the evidence which would eventually help prove his innocence (37 AD3d 1158[4th Dept 2007]).
Ultimately, despite these court rulings, testing was done and Mr. Sterling's innocence was established. The courts' reliance on a false confession after a twelve hour interrogation, of which only 20 minutes were recorded, led to the repeated affirmance of a wrongful conviction. As a result, Mr. Sterling was in prison for 18 years for murder he did not commit. One continues to wonder when courts will acknowledge the obvious and develop a reluctance to credit statements obtained after unrecorded interrogations. False confessions are present in about a quarter of the wrongful convictions exonerated by DNA evidence (see).
Finally, I am proud to note that for the past 16 years Donald Thompson, my partner and hero, has been the attorney for Mr. Sterling. Don was also the attorney who successfully fought for the exoneration of Mr. Peacock and Douglas Warney (see). (In all three cases Don enlisted the excellent attorneys of the Innocence Project to join his efforts). Three innocent men incarcerated on false confessions and then freed, in part, due to Don's efforts.
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