Some times a state just wants to put up a giant "Keep Out" sign for sex offenders from other parts of the country. Anyone who has seen quotes from the debates knows that this was a clearly expressed desire of some supporters of the statute.
Other times they are more sophisticated. Correction Law 168-g (1) made the Sex Offender Registration Act applicable to anyone in prison, on probation or on parole as of January 21, 1996. Correction Law 168-k(1) requires registration for sex offenders who move to New York State and whose prior convictions require registration under 168-a(2)(d) (elements test or requiring registration in the other jurisdiction or listed Federal crimes) or 168-A(3)(b) (essential elements of sexually violent offenses). CL 168-k(1) is not limited as to date, so that two people who commit the same crimes, one in NY one in another state, are treated differently.
This, to my mind, violates equal protection, and amounts to a barrier against sex offenders moving to this state. Granted, it's a limited, and perhaps unintended barrier, but it is one nonetheless. A New Yorker whose rape sentence expired January 20, 1996 is not required to register. A Californian whose rape sentence expired January 20, 1976 does have to register ("Keep Out!"). If you are assigned to an out-of-state sex offender case, I recommend challenging the proof that the defendant actually is required to register if the offense is pre-1/21/96 and the proof does not show that the sentence continued past the effective date of the statute.
This argument was rejected in People v McGarghan, 13 Misc3d 811 (NY SCt 2007), on the grounds that the provision did not violate equal protection. That court held that a Vermonter who committed a crime in Vermont before the effective date of the statute is treated the same as a New Yorker who committed the same crime in Vermont before the effective date of the statute. Umm, yeah, that's the test, if we're playing that than which none more Jesuitical can be conceived. By the way, a New Yorker who committed the crime in Alaska while underwater and humming the theme from The Last Remake of Beau Geste is treated the same as a Vermonter who committed the crime while skydiving and humming the theme from Sherlock Holmes Smarter Brother, that's not the issue.
This decision, which also holds (as several Departments have, but the Court of Appeals has not) that the determination by the Board that someone is a sex offender cannot be challenged at SORA, but must be challenged via Article 78. This theory holds that - while the question of what level someone should be classified as cannot be decided administratively because that would violate due process - whether a person is a sex offender at all can be. Got it. The Court of Appeals has addressed whether someone is registerable both via Article 78 and direct appeal (North v Board, 8 NY3d 735 [2007]; People v Kennedy, 7 NY3d 87 [2006]). Thus my belief that such a proceeding is permitted, but not required. I am confident that treating identical crimes, one committed by someone who is already here, one by someone who proposes to move to New York, are treated differently is the basis of my claim that equal protection, and a citizen's right to move about the country, are violated by New York's SORA statute.
Saturday, March 20, 2010
Some times a state just wants to put up a giant "Keep Out" sign for sex offenders from other parts of the country. Anyone who has seen quotes from the debates knows that this was a clearly expressed desire of some supporters of the statute.
Other times they are more sophisticated. Correction Law 168-g (1) made the Sex Offender Registration Act applicable to anyone in prison, on probation or on parole as of January 21, 1996. Correction Law 168-k(1) requires registration for sex offenders who move to New York State and whose prior convictions require registration under 168-a(2)(d) (elements test or requiring registration in the other jurisdiction or listed Federal crimes) or 168-A(3)(b) (essential elements of sexually violent offenses). CL 168-k(1) is not limited as to date, so that two people who commit the same crimes, one in NY one in another state, are treated differently.
This, to my mind, violates equal protection, and amounts to a barrier against sex offenders moving to this state. Granted, it's a limited, and perhaps unintended barrier, but it is one nonetheless. A New Yorker whose rape sentence expired January 20, 1996 is not required to register. A Californian whose rape sentence expired January 20, 1976 does have to register ("Keep Out!"). If you are assigned to an out-of-state sex offender case, I recommend challenging the proof that the defendant actually is required to register if the offense is pre-1/21/96 and the proof does not show that the sentence continued past the effective date of the statute.
This argument was rejected in People v McGarghan, 13 Misc3d 811 (NY SCt 2007), on the grounds that the provision did not violate equal protection. That court held that a Vermonter who committed a crime in Vermont before the effective date of the statute is treated the same as a New Yorker who committed the same crime in Vermont before the effective date of the statute. Umm, yeah, that's the test, if we're playing that than which none more Jesuitical can be conceived. By the way, a New Yorker who committed the crime in Alaska while underwater and humming the theme from The Last Remake of Beau Geste is treated the same as a Vermonter who committed the crime while skydiving and humming the theme from Sherlock Holmes Smarter Brother, that's not the issue.
This decision, which also holds (as several Departments have, but the Court of Appeals has not) that the determination by the Board that someone is a sex offender cannot be challenged at SORA, but must be challenged via Article 78. This theory holds that - while the question of what level someone should be classified as cannot be decided administratively because that would violate due process - whether a person is a sex offender at all can be. Got it. The Court of Appeals has addressed whether someone is registerable both via Article 78 and direct appeal (North v Board, 8 NY3d 735 [2007]; People v Kennedy, 7 NY3d 87 [2006]). Thus my belief that such a proceeding is permitted, but not required. I am confident that treating identical crimes, one committed by someone who is already here, one by someone who proposes to move to New York, are treated differently is the basis of my claim that equal protection, and a citizen's right to move about the country, are violated by New York's SORA statute.
Other times they are more sophisticated. Correction Law 168-g (1) made the Sex Offender Registration Act applicable to anyone in prison, on probation or on parole as of January 21, 1996. Correction Law 168-k(1) requires registration for sex offenders who move to New York State and whose prior convictions require registration under 168-a(2)(d) (elements test or requiring registration in the other jurisdiction or listed Federal crimes) or 168-A(3)(b) (essential elements of sexually violent offenses). CL 168-k(1) is not limited as to date, so that two people who commit the same crimes, one in NY one in another state, are treated differently.
This, to my mind, violates equal protection, and amounts to a barrier against sex offenders moving to this state. Granted, it's a limited, and perhaps unintended barrier, but it is one nonetheless. A New Yorker whose rape sentence expired January 20, 1996 is not required to register. A Californian whose rape sentence expired January 20, 1976 does have to register ("Keep Out!"). If you are assigned to an out-of-state sex offender case, I recommend challenging the proof that the defendant actually is required to register if the offense is pre-1/21/96 and the proof does not show that the sentence continued past the effective date of the statute.
This argument was rejected in People v McGarghan, 13 Misc3d 811 (NY SCt 2007), on the grounds that the provision did not violate equal protection. That court held that a Vermonter who committed a crime in Vermont before the effective date of the statute is treated the same as a New Yorker who committed the same crime in Vermont before the effective date of the statute. Umm, yeah, that's the test, if we're playing that than which none more Jesuitical can be conceived. By the way, a New Yorker who committed the crime in Alaska while underwater and humming the theme from The Last Remake of Beau Geste is treated the same as a Vermonter who committed the crime while skydiving and humming the theme from Sherlock Holmes Smarter Brother, that's not the issue.
This decision, which also holds (as several Departments have, but the Court of Appeals has not) that the determination by the Board that someone is a sex offender cannot be challenged at SORA, but must be challenged via Article 78. This theory holds that - while the question of what level someone should be classified as cannot be decided administratively because that would violate due process - whether a person is a sex offender at all can be. Got it. The Court of Appeals has addressed whether someone is registerable both via Article 78 and direct appeal (North v Board, 8 NY3d 735 [2007]; People v Kennedy, 7 NY3d 87 [2006]). Thus my belief that such a proceeding is permitted, but not required. I am confident that treating identical crimes, one committed by someone who is already here, one by someone who proposes to move to New York, are treated differently is the basis of my claim that equal protection, and a citizen's right to move about the country, are violated by New York's SORA statute.
Thursday, March 11, 2010
Ten Simple Rules
The below are general rules, often subject to obscure exceptions, and if unusual factors warrant, even very good general advice is best ignored (hence the name). Still, there are things which are not news, but worth a reminder.
1 - In your opening statement don't take on a burden, don't offer or promise to prove things.
2 - You are entitled to know the precise contents of jury notes, so long as they bear on substantive matters about evidence, law and the like, rather than scheduling or purely personal matters.
3 - The word "objection" doesn't preserve anything, you must specify your basis for the objection. There is an important exception: the word "objection", when spoken by a prosecutor, preserves every argument if the judge sustains.
4 - In a joint trial, if the codefendant's attorney objects, the issue is not preserved unless you formally join in the objection. And no, you can't announce at the start of trial that you each join in the other's objections. You have to repeat your agreement, even if that means doing so dozens of times. It's stupid, but it's the law. The Court of Appeals says so.
5 - [wherein I offered to to review any Public Defender SORA Risk Assessment]
6 - I think the best way to evaluate whether hearsay is offered for the truth of the matter asserted is to assume it's a lie, and ask whether we want to hear it anyway. If someone told the defendant "Joe just stabbed your spouse/pet/favorite curling player" and the defendant is accused of then attacking Joe, we want to know because the statement is potentially motive, even if it's a lie. If Joe were the accused, how would a similar statement be relevant at trial unless it were true?
7 - The pattern Question - "Officer, did you talk to the complainant?" Answer - "yes." Question - "and then what did you do?" Answer - "I arrested the defendant" is called inferential bolstering. It informs the jury indirectly that the complainant made the same statements as those made at trial, and thereby improperly bolsters their credibility. People v. Trowbridge says so.
8 - The identification of the defendant from a photo array does not come in at trial (CPL 60.25 & 60.30).
9 - Bigamy is not a continuing offense, and the statute of limitations runs from the invalid marriage. Yes, I've had this come up.
10 - When you are done arguing points in SORA, ask for a downward departure. It doesn't cost anything, and unlike the DA, you don't have to serve advance notice of your intent to request a departure from the point score. It lets you get in whatever beneficial things there are to say about your client, and if your client appeals it helps me a great deal if it turns out that your arguments on the points were, um, not so thoroughly compelling as to command assent.
1 - In your opening statement don't take on a burden, don't offer or promise to prove things.
2 - You are entitled to know the precise contents of jury notes, so long as they bear on substantive matters about evidence, law and the like, rather than scheduling or purely personal matters.
3 - The word "objection" doesn't preserve anything, you must specify your basis for the objection. There is an important exception: the word "objection", when spoken by a prosecutor, preserves every argument if the judge sustains.
4 - In a joint trial, if the codefendant's attorney objects, the issue is not preserved unless you formally join in the objection. And no, you can't announce at the start of trial that you each join in the other's objections. You have to repeat your agreement, even if that means doing so dozens of times. It's stupid, but it's the law. The Court of Appeals says so.
5 - [wherein I offered to to review any Public Defender SORA Risk Assessment]
6 - I think the best way to evaluate whether hearsay is offered for the truth of the matter asserted is to assume it's a lie, and ask whether we want to hear it anyway. If someone told the defendant "Joe just stabbed your spouse/pet/favorite curling player" and the defendant is accused of then attacking Joe, we want to know because the statement is potentially motive, even if it's a lie. If Joe were the accused, how would a similar statement be relevant at trial unless it were true?
7 - The pattern Question - "Officer, did you talk to the complainant?" Answer - "yes." Question - "and then what did you do?" Answer - "I arrested the defendant" is called inferential bolstering. It informs the jury indirectly that the complainant made the same statements as those made at trial, and thereby improperly bolsters their credibility. People v. Trowbridge says so.
8 - The identification of the defendant from a photo array does not come in at trial (CPL 60.25 & 60.30).
9 - Bigamy is not a continuing offense, and the statute of limitations runs from the invalid marriage. Yes, I've had this come up.
10 - When you are done arguing points in SORA, ask for a downward departure. It doesn't cost anything, and unlike the DA, you don't have to serve advance notice of your intent to request a departure from the point score. It lets you get in whatever beneficial things there are to say about your client, and if your client appeals it helps me a great deal if it turns out that your arguments on the points were, um, not so thoroughly compelling as to command assent.
Ten Simple Rules
The below are general rules, often subject to obscure exceptions, and if unusual factors warrant, even very good general advice is best ignored (hence the name). Still, there are things which are not news, but worth a reminder.
1 - In your opening statement don't take on a burden, don't offer or promise to prove things.
2 - You are entitled to know the precise contents of jury notes, so long as they bear on substantive matters about evidence, law and the like, rather than scheduling or purely personal matters.
3 - The word "objection" doesn't preserve anything, you must specify your basis for the objection. There is an important exception: the word "objection", when spoken by a prosecutor, preserves every argument if the judge sustains.
4 - In a joint trial, if the codefendant's attorney objects, the issue is not preserved unless you formally join in the objection. And no, you can't announce at the start of trial that you each join in the other's objections. You have to repeat your agreement, even if that means doing so dozens of times. It's stupid, but it's the law. The Court of Appeals says so.
5 - [wherein I offered to to review any Public Defender SORA Risk Assessment]
6 - I think the best way to evaluate whether hearsay is offered for the truth of the matter asserted is to assume it's a lie, and ask whether we want to hear it anyway. If someone told the defendant "Joe just stabbed your spouse/pet/favorite curling player" and the defendant is accused of then attacking Joe, we want to know because the statement is potentially motive, even if it's a lie. If Joe were the accused, how would a similar statement be relevant at trial unless it were true?
7 - The pattern Question - "Officer, did you talk to the complainant?" Answer - "yes." Question - "and then what did you do?" Answer - "I arrested the defendant" is called inferential bolstering. It informs the jury indirectly that the complainant made the same statements as those made at trial, and thereby improperly bolsters their credibility. People v. Trowbridge says so.
8 - The identification of the defendant from a photo array does not come in at trial (CPL 60.25 & 60.30).
9 - Bigamy is not a continuing offense, and the statute of limitations runs from the invalid marriage. Yes, I've had this come up.
10 - When you are done arguing points in SORA, ask for a downward departure. It doesn't cost anything, and unlike the DA, you don't have to serve advance notice of your intent to request a departure from the point score. It lets you get in whatever beneficial things there are to say about your client, and if your client appeals it helps me a great deal if it turns out that your arguments on the points were, um, not so thoroughly compelling as to command assent.
1 - In your opening statement don't take on a burden, don't offer or promise to prove things.
2 - You are entitled to know the precise contents of jury notes, so long as they bear on substantive matters about evidence, law and the like, rather than scheduling or purely personal matters.
3 - The word "objection" doesn't preserve anything, you must specify your basis for the objection. There is an important exception: the word "objection", when spoken by a prosecutor, preserves every argument if the judge sustains.
4 - In a joint trial, if the codefendant's attorney objects, the issue is not preserved unless you formally join in the objection. And no, you can't announce at the start of trial that you each join in the other's objections. You have to repeat your agreement, even if that means doing so dozens of times. It's stupid, but it's the law. The Court of Appeals says so.
5 - [wherein I offered to to review any Public Defender SORA Risk Assessment]
6 - I think the best way to evaluate whether hearsay is offered for the truth of the matter asserted is to assume it's a lie, and ask whether we want to hear it anyway. If someone told the defendant "Joe just stabbed your spouse/pet/favorite curling player" and the defendant is accused of then attacking Joe, we want to know because the statement is potentially motive, even if it's a lie. If Joe were the accused, how would a similar statement be relevant at trial unless it were true?
7 - The pattern Question - "Officer, did you talk to the complainant?" Answer - "yes." Question - "and then what did you do?" Answer - "I arrested the defendant" is called inferential bolstering. It informs the jury indirectly that the complainant made the same statements as those made at trial, and thereby improperly bolsters their credibility. People v. Trowbridge says so.
8 - The identification of the defendant from a photo array does not come in at trial (CPL 60.25 & 60.30).
9 - Bigamy is not a continuing offense, and the statute of limitations runs from the invalid marriage. Yes, I've had this come up.
10 - When you are done arguing points in SORA, ask for a downward departure. It doesn't cost anything, and unlike the DA, you don't have to serve advance notice of your intent to request a departure from the point score. It lets you get in whatever beneficial things there are to say about your client, and if your client appeals it helps me a great deal if it turns out that your arguments on the points were, um, not so thoroughly compelling as to command assent.
Sunday, March 7, 2010
Please join me as we take a trip deep into the weeds.
Fact - the People are required to serve a 710.30 notice when they intend to use statements of the defendant, which meet other criteria which will not be enumerated here.
Fact - Sometimes the People do not serve a 710.30 notice as to some or all statements meeting those criteria.
Fact - The Appellate Division, Fourth Department, has ruled that using such statements for the purpose of impeachment is perfectly okay even so (People v Pruitt, 6 AD3d 1233 [4th Dept, 2004] ["Contrary to defendant's further contention, a CPL 710.30 notice was not required because the challenged statement was elicited during rebuttal and was 'offered solely for the purpose of impeachment' (People v Hill, 281 AD2d 917...)"]). Note that this wasn't simply impeachment of a defendant during his testimony, but elicited during rebuttal, conceivably to impeach someone other than the defendant, though probably to impeach the defendant. A fortiori, if there is an un-noticed statement it can be used in direct impeachment of the defendant who testifies on his own behalf.
Where the People serve no 710.30 notice, the defendant cannot move to suppress, or else he forfeits his right to preclusion under 710.30. Therefore, if the only issue were notice, every un-noticed statement would be uniformly admissible regardless of the circumstances under which it was obtained. Police could literally beat a statement out of the defendant and, on this analysis, use it to impeach. This can't be the law.
What the prosecution would no doubt like is this: where there are issues of true voluntariness, such that a statement would not be usable even to impeach, the defendant must allege such when the statements are offered. This, however, represents a motion to suppress, which immediately forfeits the defendant's right to preclusion. Therefore, in my view, this would unduly burden the defendant's federal and state constitutional rights, which prohibit the use of truly involuntarily obtained statements, by requiring the defendant to forfeit state statutory rights in order to protect constitutional ones.
In my opinion, and here's the shiny object in the weeds that I wanted to get to, the People have a burden under People v Huntley (15 NY2d 72 [1965]) to establish that the statement is voluntary before it can be admitted:"the jury passes on voluntariness only after the judge has fully and independently resolved the issue against the accused’ and has made express findings upon the disputed fact question of voluntariness." 710.30 doesn't reduce the People's burden on voluntariness from beyond a reasonable doubt to nothing whatever. The defendant should not be deprived of this constitutional right by requiring him to forfeit his state statutory right in order to exercise his federal right. Using an un-noticed statement, it seems to me, represents a due process violation not because the statement should be suppressed, but because it should not be admitted without proof that it was not involuntarily obtained, which the defendant need not even allege because to do so would improperly require him to forfeit other rights.
It might still be worth making a suppression motion mid-trial, certainly if there is potential proof on your side that the statement was truly involuntarily made, and potentially if the normal Huntley motion can be made (I am somewhat uncertain about this - it's a esoteric part of an obscure topic), i.e. move to suppress without specificity. The People's inconvenience at this point is due to their failure to serve notice.
Fact - the People are required to serve a 710.30 notice when they intend to use statements of the defendant, which meet other criteria which will not be enumerated here.
Fact - Sometimes the People do not serve a 710.30 notice as to some or all statements meeting those criteria.
Fact - The Appellate Division, Fourth Department, has ruled that using such statements for the purpose of impeachment is perfectly okay even so (People v Pruitt, 6 AD3d 1233 [4th Dept, 2004] ["Contrary to defendant's further contention, a CPL 710.30 notice was not required because the challenged statement was elicited during rebuttal and was 'offered solely for the purpose of impeachment' (People v Hill, 281 AD2d 917...)"]). Note that this wasn't simply impeachment of a defendant during his testimony, but elicited during rebuttal, conceivably to impeach someone other than the defendant, though probably to impeach the defendant. A fortiori, if there is an un-noticed statement it can be used in direct impeachment of the defendant who testifies on his own behalf.
Where the People serve no 710.30 notice, the defendant cannot move to suppress, or else he forfeits his right to preclusion under 710.30. Therefore, if the only issue were notice, every un-noticed statement would be uniformly admissible regardless of the circumstances under which it was obtained. Police could literally beat a statement out of the defendant and, on this analysis, use it to impeach. This can't be the law.
What the prosecution would no doubt like is this: where there are issues of true voluntariness, such that a statement would not be usable even to impeach, the defendant must allege such when the statements are offered. This, however, represents a motion to suppress, which immediately forfeits the defendant's right to preclusion. Therefore, in my view, this would unduly burden the defendant's federal and state constitutional rights, which prohibit the use of truly involuntarily obtained statements, by requiring the defendant to forfeit state statutory rights in order to protect constitutional ones.
In my opinion, and here's the shiny object in the weeds that I wanted to get to, the People have a burden under People v Huntley (15 NY2d 72 [1965]) to establish that the statement is voluntary before it can be admitted:"the jury passes on voluntariness only after the judge has fully and independently resolved the issue against the accused’ and has made express findings upon the disputed fact question of voluntariness." 710.30 doesn't reduce the People's burden on voluntariness from beyond a reasonable doubt to nothing whatever. The defendant should not be deprived of this constitutional right by requiring him to forfeit his state statutory right in order to exercise his federal right. Using an un-noticed statement, it seems to me, represents a due process violation not because the statement should be suppressed, but because it should not be admitted without proof that it was not involuntarily obtained, which the defendant need not even allege because to do so would improperly require him to forfeit other rights.
It might still be worth making a suppression motion mid-trial, certainly if there is potential proof on your side that the statement was truly involuntarily made, and potentially if the normal Huntley motion can be made (I am somewhat uncertain about this - it's a esoteric part of an obscure topic), i.e. move to suppress without specificity. The People's inconvenience at this point is due to their failure to serve notice.
Please join me as we take a trip deep into the weeds.
Fact - the People are required to serve a 710.30 notice when they intend to use statements of the defendant, which meet other criteria which will not be enumerated here.
Fact - Sometimes the People do not serve a 710.30 notice as to some or all statements meeting those criteria.
Fact - The Appellate Division, Fourth Department, has ruled that using such statements for the purpose of impeachment is perfectly okay even so (People v Pruitt, 6 AD3d 1233 [4th Dept, 2004] ["Contrary to defendant's further contention, a CPL 710.30 notice was not required because the challenged statement was elicited during rebuttal and was 'offered solely for the purpose of impeachment' (People v Hill, 281 AD2d 917...)"]). Note that this wasn't simply impeachment of a defendant during his testimony, but elicited during rebuttal, conceivably to impeach someone other than the defendant, though probably to impeach the defendant. A fortiori, if there is an un-noticed statement it can be used in direct impeachment of the defendant who testifies on his own behalf.
Where the People serve no 710.30 notice, the defendant cannot move to suppress, or else he forfeits his right to preclusion under 710.30. Therefore, if the only issue were notice, every un-noticed statement would be uniformly admissible regardless of the circumstances under which it was obtained. Police could literally beat a statement out of the defendant and, on this analysis, use it to impeach. This can't be the law.
What the prosecution would no doubt like is this: where there are issues of true voluntariness, such that a statement would not be usable even to impeach, the defendant must allege such when the statements are offered. This, however, represents a motion to suppress, which immediately forfeits the defendant's right to preclusion. Therefore, in my view, this would unduly burden the defendant's federal and state constitutional rights, which prohibit the use of truly involuntarily obtained statements, by requiring the defendant to forfeit state statutory rights in order to protect constitutional ones.
In my opinion, and here's the shiny object in the weeds that I wanted to get to, the People have a burden under People v Huntley (15 NY2d 72 [1965]) to establish that the statement is voluntary before it can be admitted:"the jury passes on voluntariness only after the judge has fully and independently resolved the issue against the accused’ and has made express findings upon the disputed fact question of voluntariness." 710.30 doesn't reduce the People's burden on voluntariness from beyond a reasonable doubt to nothing whatever. The defendant should not be deprived of this constitutional right by requiring him to forfeit his state statutory right in order to exercise his federal right. Using an un-noticed statement, it seems to me, represents a due process violation not because the statement should be suppressed, but because it should not be admitted without proof that it was not involuntarily obtained, which the defendant need not even allege because to do so would improperly require him to forfeit other rights.
It might still be worth making a suppression motion mid-trial, certainly if there is potential proof on your side that the statement was truly involuntarily made, and potentially if the normal Huntley motion can be made (I am somewhat uncertain about this - it's a esoteric part of an obscure topic), i.e. move to suppress without specificity. The People's inconvenience at this point is due to their failure to serve notice.
Fact - the People are required to serve a 710.30 notice when they intend to use statements of the defendant, which meet other criteria which will not be enumerated here.
Fact - Sometimes the People do not serve a 710.30 notice as to some or all statements meeting those criteria.
Fact - The Appellate Division, Fourth Department, has ruled that using such statements for the purpose of impeachment is perfectly okay even so (People v Pruitt, 6 AD3d 1233 [4th Dept, 2004] ["Contrary to defendant's further contention, a CPL 710.30 notice was not required because the challenged statement was elicited during rebuttal and was 'offered solely for the purpose of impeachment' (People v Hill, 281 AD2d 917...)"]). Note that this wasn't simply impeachment of a defendant during his testimony, but elicited during rebuttal, conceivably to impeach someone other than the defendant, though probably to impeach the defendant. A fortiori, if there is an un-noticed statement it can be used in direct impeachment of the defendant who testifies on his own behalf.
Where the People serve no 710.30 notice, the defendant cannot move to suppress, or else he forfeits his right to preclusion under 710.30. Therefore, if the only issue were notice, every un-noticed statement would be uniformly admissible regardless of the circumstances under which it was obtained. Police could literally beat a statement out of the defendant and, on this analysis, use it to impeach. This can't be the law.
What the prosecution would no doubt like is this: where there are issues of true voluntariness, such that a statement would not be usable even to impeach, the defendant must allege such when the statements are offered. This, however, represents a motion to suppress, which immediately forfeits the defendant's right to preclusion. Therefore, in my view, this would unduly burden the defendant's federal and state constitutional rights, which prohibit the use of truly involuntarily obtained statements, by requiring the defendant to forfeit state statutory rights in order to protect constitutional ones.
In my opinion, and here's the shiny object in the weeds that I wanted to get to, the People have a burden under People v Huntley (15 NY2d 72 [1965]) to establish that the statement is voluntary before it can be admitted:"the jury passes on voluntariness only after the judge has fully and independently resolved the issue against the accused’ and has made express findings upon the disputed fact question of voluntariness." 710.30 doesn't reduce the People's burden on voluntariness from beyond a reasonable doubt to nothing whatever. The defendant should not be deprived of this constitutional right by requiring him to forfeit his state statutory right in order to exercise his federal right. Using an un-noticed statement, it seems to me, represents a due process violation not because the statement should be suppressed, but because it should not be admitted without proof that it was not involuntarily obtained, which the defendant need not even allege because to do so would improperly require him to forfeit other rights.
It might still be worth making a suppression motion mid-trial, certainly if there is potential proof on your side that the statement was truly involuntarily made, and potentially if the normal Huntley motion can be made (I am somewhat uncertain about this - it's a esoteric part of an obscure topic), i.e. move to suppress without specificity. The People's inconvenience at this point is due to their failure to serve notice.
Tuesday, February 23, 2010
In April, 2008 the Court of Appeals in People v Sparber (10 NY3d 457 [2008]), held that only a judge, and not prison or court clerks can impose Post Release Supervision [PRS], even when sentencing courts failed to pronounce PRS as required by law. New York reacted to this this holding by enacting Correction Law 601-d which purports to empower courts to re-sentence person to PRS, even after they have already served their complete sentence. The authority of courts to resentence under this statue was challenged on both statutory and constitutional grounds.
This issue was resolved in People v Williams (__NY3d__, 2010 NY Slip Op 01527 [2/23/10]), in which the Court of Appeals, in a decision considering five such challenges, held that
Obviously great news for those who challenged their resentence and those who had been facing resentencing. But what about the many people (perhaps thousands) who have already been resentenced and are now either serving or are in custody in violation of unconstitutionally imposed PRS? Are the Department of Corrections and Division of Parole going to identify who these people are and inform them that they were apparently resentenced illegally and, as appropriate, entitled to stop serving PRS or to release from prison? If that is asking too much, will the Department of Corrections and Division of Parole at least notify judges who apparently illegally resentenced people that they may wish to notify those affected. Don't forget after Sparber was issued, judges were notified by these Departments that they should resentence those who had not been sentenced to PRS, even when, as we now know, those resentences were unconstitutional? So having help create this problem, one would hope these Departments will take steps mitigate the harm. Isn't it wrong, absent any lawful sentence or authority, for New York to continue to keep these people either locked up reporting to PRS when the State knows those sentenced were unconstitutional. Don't we have a budget crisis?
If a sense of fairness and right doesn't motivate New York, how about money? Can we afford to incarcerate or supervise people with no lawful sentences? Can we afford the lawsuits that ultimately will be brought by those illegally kept in custody by a state which does not notify them of the Williams decision?
This issue was resolved in People v Williams (__NY3d__, 2010 NY Slip Op 01527 [2/23/10]), in which the Court of Appeals, in a decision considering five such challenges, held that
after release from prison, a legitimate expectation in the finality of a sentence arises and the Double Jeopardy Clause prevents reformation to attach a PRS component to the original completed sentence.... So long as an illegal sentence is subject to correction, a defendant cannot claim a legitimate expectation that the originally-imposed, improper sentence is final for all purposes (see United States v Fogel, 829 F2d 77, 87 [DC Cir 1987])...Yet, there must be a temporal limitation on a court's ability to resentence a defendant (see generally DeWitt v Ventetoulo, 6 F3d at 34-35) since criminal courts do not have perpetual jurisdiction over all persons who were once sentenced for criminal acts. Even where a defendant's sentence is illegal, there is a legitimate expectation of finality once the initial sentence has been served and the direct appeal has been completed (or the time to appeal has expired). In these situations, the sentences are beyond the court's authority and an additional term of PRS may not be imposed. With the caveats we have identified, in a case where PRS was not formally pronounced by the sentencing court pursuant to CPL 380.20, we hold that the Double Jeopardy Clause prohibits a court from resentencing the defendant to the mandatory term of PRS after the defendant has served the determinate term of imprisonment and has been released from confinement by DOCS.
Obviously great news for those who challenged their resentence and those who had been facing resentencing. But what about the many people (perhaps thousands) who have already been resentenced and are now either serving or are in custody in violation of unconstitutionally imposed PRS? Are the Department of Corrections and Division of Parole going to identify who these people are and inform them that they were apparently resentenced illegally and, as appropriate, entitled to stop serving PRS or to release from prison? If that is asking too much, will the Department of Corrections and Division of Parole at least notify judges who apparently illegally resentenced people that they may wish to notify those affected. Don't forget after Sparber was issued, judges were notified by these Departments that they should resentence those who had not been sentenced to PRS, even when, as we now know, those resentences were unconstitutional? So having help create this problem, one would hope these Departments will take steps mitigate the harm. Isn't it wrong, absent any lawful sentence or authority, for New York to continue to keep these people either locked up reporting to PRS when the State knows those sentenced were unconstitutional. Don't we have a budget crisis?
If a sense of fairness and right doesn't motivate New York, how about money? Can we afford to incarcerate or supervise people with no lawful sentences? Can we afford the lawsuits that ultimately will be brought by those illegally kept in custody by a state which does not notify them of the Williams decision?
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