tag:blogger.com,1999:blog-253740687045404312.comments2024-01-23T08:05:19.898-05:00New York Criminal DefenseBrian Shiffrinhttp://www.blogger.com/profile/10237352678322961062noreply@blogger.comBlogger101125tag:blogger.com,1999:blog-253740687045404312.post-12353573802055704562009-01-07T22:27:18.000-05:002009-01-07T22:27:18.000-05:00The other notable thing about this case is that th...The other notable thing about this case is that the court found that defendant's trial order of dismissal motion was adequate to preserve the question of the legal sufficiency of the evidence. Unfortunately this is notable because despite acres of land being deforested to make the paper on which cases finding T.O.D. motions inadequate to preserve legal sufficiency claims are now printed, defense counsel continue to make "and the defendant challenges each and every element of every count charged in the indictment" pro forma T.O.D. motions. <br><br>There is no point in making such a motion. It preserves nothing. It serves no function apart from fostering a misplaced impression of the lawyer's competence in the defendant's eyes while delaying the court staff's internet shopping opportunities for an extra 2 or 3 minutes. <br><br>This might work better: <br>1. Copy off the CJI charge for each count. <br>2. Highlight the elements in the charge. <br>3. Address each element in turn, offering specific examples of how the proof is legally insufficient with respect to that element. <br>3a. If, per Ford, the gravamen of an element, or a part of it is not clear from the CJI charge or the language of the statute, remember to specifically address the insufficiency of that part as well. <br>4. Move to dismiss based on each of the arguments raised, which you might think would be assumed, but having come this far, why leave it to chance? <br><br>Thus, the proper preservation of a frequently occurring legal issue is transformed from a mystical Kabuki dance which few successfully perform to a task requiring little skill or imagination: verbally comparing the case proof to the relevant legal elements.Donald Thompsonhttps://www.blogger.com/profile/12536036026587314189noreply@blogger.comtag:blogger.com,1999:blog-253740687045404312.post-64405256556997867352009-02-19T20:31:14.000-05:002009-02-19T20:31:14.000-05:00OK, you wouldn't say it, so I will: this is th...OK, you wouldn't say it, so I will: this is the Holy Grail of appellate counsel! The Holy &*#&# Grail, I say! Why is that? Because trial counsel can't screw it up. It can't be waived, consented to, or unpreserved by lack of timely objection. Thus, it is beyond the bounds of counsel's abilities to affect this issue, positively, negatively, or otherwise. This is like the tests in grade school where you get 5 points for putting your name on the paper - as trial counsel, you win a prize just for showing up. The only person who can screw this issue up is appellate counsel, by failing to spot it, or (as noted in the original post) by urging an appeal on this ground where there should be no appeal.Donald Thompsonhttps://www.blogger.com/profile/12536036026587314189noreply@blogger.comtag:blogger.com,1999:blog-253740687045404312.post-51086491609934885912009-05-07T10:54:25.000-04:002009-05-07T10:54:25.000-04:00So this from the prosecutor who, took an oath to u...So this from the prosecutor who, took an oath to uphold the constitution (as did the lower court who wasn't troubled by this egregious misconduct a wit)? The only person upholding the constitution in that courtroom (or trying to anyway) was the defense attorney - who didn't take the same oath. Does anyone suppose the trial prosecutor will suffer any recriminations based on this conduct?Donald Thompsonhttps://www.blogger.com/profile/12536036026587314189noreply@blogger.comtag:blogger.com,1999:blog-253740687045404312.post-75807325413066777292009-05-05T20:06:35.000-04:002009-05-05T20:06:35.000-04:00So defendant thwarted the court's ability to c...So defendant thwarted the court's ability to consider the issue by not testifying because . . . the court is incapable of envisioning what a person testifying in jail garb might look like? Is the court contending that if only the defendant had testified there would be some record from which it could weigh the prejudice of that procedure? Because there wouldn't be. Ever. DA: "I note that the defendant has chosen to testify dressed like a large fuzzy buny rabbit. Does any one have any questions? There being no questions, we'll call the next case." OK, so no prejudice from testifying in a rabbit suit either, so long as everyone holds their tongue and pretends (as the court is apparently willing to do in this case) that everything's just fine.Donald Thompsonhttps://www.blogger.com/profile/12536036026587314189noreply@blogger.comtag:blogger.com,1999:blog-253740687045404312.post-76976225372194121732009-05-15T14:42:46.000-04:002009-05-15T14:42:46.000-04:00A special shout-out to Richard D. Willstatter, New...A special shout-out to Richard D. Willstatter, New York State Association of Criminal Defense Lawyers and NACDL Amicus Curiae Chair, who came across Weaver case while conducting research on another case. He contacted Weaver’s counsel and initiated NACDL's and NYSACDL's joint amicus effort, which expanded to include other amici such as the Electronic Frontier Foundation, the American-Arab Anti-Discrimination Committee (ADC), the Sikh American Legal Defense and Education Fund, the Council on American-Islamic Relations (CAIR), and the Union for Reform Judaism. The resulting, very fine brief, can be found here: <br><br>http://www.nacdl.org/public.nsf/mediasources/GPSAmicusBrief/$FILE/gps.pdfDonald Thompsonhttps://www.blogger.com/profile/12536036026587314189noreply@blogger.comtag:blogger.com,1999:blog-253740687045404312.post-47666558236981501712009-05-15T08:56:18.000-04:002009-05-15T08:56:18.000-04:00The article linked to is a refreshingly frank expo...The article linked to is a refreshingly frank exposition on the Supreme Court's 4th Amendment jurisprudence. The author doesn't refer to them as the "Supreme" Court, but we get the message anyway.Donald Thompsonhttps://www.blogger.com/profile/12536036026587314189noreply@blogger.comtag:blogger.com,1999:blog-253740687045404312.post-12619872892160085662009-06-08T22:17:28.000-04:002009-06-08T22:17:28.000-04:00We thus "may presume that the matter was prop...We thus "may presume that the matter was properly before that court" Really?! Why? Because lower courts don't make mistakes? Presumptions like this don't give one much confidence in the utility of appeals.Donald Thompsonhttps://www.blogger.com/profile/12536036026587314189noreply@blogger.comtag:blogger.com,1999:blog-253740687045404312.post-22857184088671124372009-06-08T22:12:14.000-04:002009-06-08T22:12:14.000-04:00Defense counsel may well have been a denizen of fe...Defense counsel may well have been a denizen of federal court where, Monty-Python-like, "your innocence will be considered at the time of sentencing" and acquitted conduct has long been fair game for aggravation of a sentence. Shhh, don't tell the Appellate Division, let's just keep that between us.Donald Thompsonhttps://www.blogger.com/profile/12536036026587314189noreply@blogger.comtag:blogger.com,1999:blog-253740687045404312.post-68536466409016064152009-06-11T21:35:57.000-04:002009-06-11T21:35:57.000-04:00This should only escalate the slap-fight between t...This should only escalate the slap-fight between the Court of Appeals and, in particular, the Second Circuit over the Court of Appeals' increasingly "novel" construction of federal constitutional protections. First came the donnybrook over the differing standards for ineffective assistance claims, then the Court of Appeals' Orwellian claim that NY's persistent felony offender statue does not run afoul of federal constitutional protections because despite the statutory requirement that the sentencing court find that the defendant's history and character warrant such sentence enhancement, the court is not required to make any factual findings before sentencing a defendant as a persistent felony offender. <br><br>What's the message? In this case, as in the other examples mentioned above, if the prosecution was held to the constitutional requirements by any objective standard, the People would not prevail 2/3s of the time, and that's a result that is simply unacceptable to the Court. <br><br>What's the other message? Don't forget to invoke the federal constitutional standard which, the Court's decision here notwithstanding, the State lacks the authority to diminish by application of a lower state standard.Donald Thompsonhttps://www.blogger.com/profile/12536036026587314189noreply@blogger.comtag:blogger.com,1999:blog-253740687045404312.post-9194706486630240822009-06-14T21:41:21.000-04:002009-06-14T21:41:21.000-04:00What's also not obvious - or maybe it is - is ...What's also not obvious - or maybe it is - is why the lower court refused to grant defendant's motion to dismiss on this ground. This same lower court has some history of failing to appreciate defects in grand jury procedures, illustrated by People v. Sayavong, for example, cited in this case.Donald Thompsonhttps://www.blogger.com/profile/12536036026587314189noreply@blogger.comtag:blogger.com,1999:blog-253740687045404312.post-27884886400432580302009-09-11T22:01:04.000-04:002009-09-11T22:01:04.000-04:00Common sense takes a holiday. It's hard to ex...Common sense takes a holiday. It's hard to explain this holding as anything other than either a fundamental misunderstanding of the Criminal Procedure Law (which seems unlikely) or the result of an almost physiological aversion to rendering any decision that might benefit, however slightly, a criminal defendant (which seems more likely). <br><br>The issue should be raised in spite of this decision, mostly because it is plainly wrong, and raising it gives a higher court an opportunity to say so.Donald Thompsonhttps://www.blogger.com/profile/12536036026587314189noreply@blogger.comtag:blogger.com,1999:blog-253740687045404312.post-90204864818223020032009-09-12T20:00:08.000-04:002009-09-12T20:00:08.000-04:00So, the lesson here is that a defendant who insist...So, the lesson here is that a defendant who insists upon his judge following the law may be punished for his insolence; the same laws invoked for the benefit of the government don't work quite the same for individuals. <br><br>Sir Thomas More would give "the Devil himself the benefit of law, for my own safety's sake;" he wouldn't have made it on the Court of Appeals.Donald Thompsonhttps://www.blogger.com/profile/12536036026587314189noreply@blogger.comtag:blogger.com,1999:blog-253740687045404312.post-26351242668943637512009-10-04T20:30:14.000-04:002009-10-04T20:30:14.000-04:00One might also wonder when (or if) some appellate ...One might also wonder when (or if) some appellate judge will ever screw up the courage to state the obvious: that failure to renew a TOD motion is not, indeed never could be, legitimate, acceptable, or defensible as a "trial tactic," is not something that could ever, under any circumstances, benefit a defendant, and is very simply nothing more than constitutionally ineffective assistance based on what should be recognized as a stunning unfamiliarity with a well-settled legal standard.Donald Thompsonhttps://www.blogger.com/profile/12536036026587314189noreply@blogger.comtag:blogger.com,1999:blog-253740687045404312.post-2711240733312547332009-10-04T20:51:29.000-04:002009-10-04T20:51:29.000-04:00"The court did not abuse its discretion in de..."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." <br><br>Unfortunately, as is often the case, the appellate decision does not include enough facts to guide lower courts and practitioners as to what led to the absence of an abuse of discretion in this case, or consequently, what facts might result in an abuse of discretion in another case. <br><br>According to Innocence Project records somewhere between 20-25% of cases in which defendants have been proven factually innocent by post-conviction DNA testing included false confessions. <br><br>So, what legitimate reason could there be to prevent a jury from understanding that some defendants falsely confess? The prosecution will argue "No one would confess to such a terrible act if is wasn't true" (translate "People don't falsely confess"). Under these circumstances, isn't the exclusion of evidence of the counter-intuitive fact of false confession simply a judicial thumb on the prosecution side of the scale?Donald Thompsonhttps://www.blogger.com/profile/12536036026587314189noreply@blogger.comtag:blogger.com,1999:blog-253740687045404312.post-69096573781015063192009-12-11T15:02:24.000-05:002009-12-11T15:02:24.000-05:00John Campbell, of Tilem & Campbell, PC in Whit...John Campbell, of Tilem & Campbell, PC in White Plains, includes the following language in his motions for Brady material: <br><br>“The motion practice that takes place over discovery in a criminal case is incomprehensible. The People operate under this delusional belief that they decide what is discoverable and when they must turn discoverable items over to the defendant. This could not be further from the plain, clear and unambiguous wording of CPL 240.20(1). It’s a very very simple issue to determine. Items listed in CPL 240.20(1)(a) – (k) are discoverable upon demand. The items are discoverable upon the demand of the defendant; not when the People decide they are discoverable. Indeed, the failure to provide duly demanded discovery can amount to grievable conduct. People v. Perez, 193 Misc.2d 169, 749 N.Y.S.2d 850 (N.Y.Just.Ct. 2002).”Donald Thompsonhttps://www.blogger.com/profile/12536036026587314189noreply@blogger.comtag:blogger.com,1999:blog-253740687045404312.post-280833120105772182010-01-05T19:33:05.000-05:002010-01-05T19:33:05.000-05:00Don Rehkopf offers the following comment:Contrary ...Don Rehkopf offers the following comment:<br><br>Contrary to the 4AD's comment, it is NOT "well settled" that the police do not have to record custodial interrogations. See, Report Of The [New Jersey] Supreme Court Special Committee On Recordation Of Custodial Interrogations (April 15, 2005).Donald Thompsonhttps://www.blogger.com/profile/12536036026587314189noreply@blogger.comtag:blogger.com,1999:blog-253740687045404312.post-35196086290550996842010-03-16T20:29:35.000-04:002010-03-16T20:29:35.000-04:0011. In New York, it's illegal to have sex with...11. In New York, it's illegal to have sex with a dead body. It's also illegal to have sex with an animal. But it's not illegal to have sex with a dead animal. Because this is not an affirmative defense the People must prove beyond a reasonable doubt that the animal was alive. Good luck with that.Donald Thompsonhttps://www.blogger.com/profile/12536036026587314189noreply@blogger.comtag:blogger.com,1999:blog-253740687045404312.post-12097964301118933522010-03-23T22:40:01.000-04:002010-03-23T22:40:01.000-04:00Could there be any legitimate reason for refusing ...Could there be any legitimate reason for refusing to record interrogations and confessions, putting the jury in the interrogation room, rather than relying on the "sum and substance" recollection of an interested witness? Could there be any reason at all, other than to preserve police ability to shade, intentionally or not, or to lie - intentionally - to the jury about what transpired in the interrogation room? In light of the potential for deceit, why isn't it appropriate to penalize the party who has the (sole) ability to remove any question of deceit, but elects not to do so? Never mind a defendant's added constitutional protections - if both parties were merely treated equally, as in a civil case, an adverse inference instruction would be given as a matter of course under these circumstances. That is, if both parties were treated equally.Donald Thompsonhttps://www.blogger.com/profile/12536036026587314189noreply@blogger.comtag:blogger.com,1999:blog-253740687045404312.post-69433874262808369062010-03-27T12:10:19.000-04:002010-03-27T12:10:19.000-04:00The Fourth Department has generally, and I think e...The Fourth Department has generally, and I think explicitly (though I don't have the cite available now), held that two hours is a reasonable time. Beyond two hours (here it was two hours, five minutes) will result in suppression of a showup.James Eckerthttps://www.blogger.com/profile/15299076408028417438noreply@blogger.comtag:blogger.com,1999:blog-253740687045404312.post-32552296675820020512010-03-30T18:18:56.000-04:002010-03-30T18:18:56.000-04:00It's the link between the defendant's iden...It's the link between the defendant's identity and his actions (driving) which is the fruit of the illegality. There ought to be an analysis which permits suppression of that link, and thereby removes the incentive to stop without reason and see what's up, without suppressing either the DMV information, which exists outside the illegality, or his identity, which seems hard to justify.James Eckerthttps://www.blogger.com/profile/15299076408028417438noreply@blogger.comtag:blogger.com,1999:blog-253740687045404312.post-74119225648915264462016-01-18T13:34:05.000-05:002016-01-18T13:34:05.000-05:00Normally paid through probation or parole - if not...Normally paid through probation or parole - if not, through the court clerkDonald Thompsonhttps://www.blogger.com/profile/12536036026587314189noreply@blogger.comtag:blogger.com,1999:blog-253740687045404312.post-26430910610903988272016-01-18T13:32:45.000-05:002016-01-18T13:32:45.000-05:00where do i pay the dna bank fee in ny statewhere do i pay the dna bank fee in ny state<br>suni214https://www.blogger.com/profile/13785026550984873701noreply@blogger.comtag:blogger.com,1999:blog-253740687045404312.post-67185597781114261312010-12-18T12:17:22.000-05:002010-12-18T12:17:22.000-05:00The majority's disingenuous insistence that th...The majority's disingenuous insistence that the Emperor does so have clothes, and we really mean it here is reminiscent of the more-than-decade long debacle/defense of People v. Register. What could be the motivation for clinging to a ruling that is so obviously wrong? Inability to concede error? Cowardice? Antipathy toward the limited class of defendants affected by the ruling? The big silver lining that extends well beyond this decision is the willingness of the the state's chief jurist to call faulty reasoning where he sees it, even on his own court.Donald Thompsonhttps://www.blogger.com/profile/12536036026587314189noreply@blogger.comtag:blogger.com,1999:blog-253740687045404312.post-6730718558960725152011-02-10T22:51:18.000-05:002011-02-10T22:51:18.000-05:00But wait! If defendants were informed of this pote...But wait! If defendants were informed of this potential life sentence, that would surely cut down on pleas, resulting in more trials, and no one wants that, right? <br><br>So, based on the Court's logic, there is no functional difference to a defendant's election to accept a plea between "the plea is 2-4" and "the plea is 2-4, but it might turn into life later - want to roll the dice?" Remember the hernial reach from first year law school? The logic of this decision is surely truss-inducing.Donald Thompsonhttps://www.blogger.com/profile/12536036026587314189noreply@blogger.comtag:blogger.com,1999:blog-253740687045404312.post-60207239820644643032011-09-30T19:51:01.000-04:002011-09-30T19:51:01.000-04:00So what legitimate reason could there be to keep o...So what legitimate reason could there be to keep out the testimony of an expert who would explain how and why people falsely confess? I mean really, what would it hurt? This is the best the Court can come up with: "we conclude that the court properly determined that the expert did not possess a professional or technical knowledge that was beyond the ken of the average juror." <br><br>Really? Apparently the members of the court never, ever go to cocktail parties, where (as those of us who do go to cocktail parties are aware) it's common knowledge and roundly agreed that "I'd never confess to a crime I didn't commit." <br><br>It's hard to tell whether decisions like this stem from simple prosecutorial bias or a failure of imagination, but ultimately it doesn't matter; the result is the same.Donald Thompsonhttps://www.blogger.com/profile/12536036026587314189noreply@blogger.com