In People v Catu (4 NY3d 242 [2005]) the Court of Appeals held that s“a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action” and decided that the trial court's failure to advise Mr. Catu of his obligation to serve a five-year term of postrelease supervision required reversal of his conviction. Further, the Court rejected a harmless error analysis in which courts seek to retrospectively determine whether the defendant would have declined to plead guilty had he known of the postrelease supervision.
Since this decision about 100 convictions have been reversed on Catu grounds. The two latest such reversal are the decisions of the Appellate, Division, Fourth Department in People v Rush, 2010 NY Slip Op 06911 [4th Dept 10/01/10]) and People v Pett, 2010 NY Slip Op 06826 [4th Dept 10/01/10]).
Thus, appellate attorneys may want to consider this issue when looking for issues to raise. Of course, it would be blog malpractice to suggest the possibility of urging reversal on Catu grounds without including a warning: attacking a plea as not knowing and intelligent may ultimately be harmful to your client, who might subequently receive a greater sentence (see).
Saturday, October 2, 2010
In People v Catu (4 NY3d 242 [2005]) the Court of Appeals held that s“a defendant pleading guilty to a determinate sentence must be aware of the postrelease supervision component of that sentence in order to knowingly, voluntarily and intelligently choose among alternative courses of action” and decided that the trial court's failure to advise Mr. Catu of his obligation to serve a five-year term of postrelease supervision required reversal of his conviction. Further, the Court rejected a harmless error analysis in which courts seek to retrospectively determine whether the defendant would have declined to plead guilty had he known of the postrelease supervision.
Since this decision about 100 convictions have been reversed on Catu grounds. The two latest such reversal are the decisions of the Appellate, Division, Fourth Department in People v Rush, 2010 NY Slip Op 06911 [4th Dept 10/01/10]) and People v Pett, 2010 NY Slip Op 06826 [4th Dept 10/01/10]).
Thus, appellate attorneys may want to consider this issue when looking for issues to raise. Of course, it would be blog malpractice to suggest the possibility of urging reversal on Catu grounds without including a warning: attacking a plea as not knowing and intelligent may ultimately be harmful to your client, who might subequently receive a greater sentence (see).
Since this decision about 100 convictions have been reversed on Catu grounds. The two latest such reversal are the decisions of the Appellate, Division, Fourth Department in People v Rush, 2010 NY Slip Op 06911 [4th Dept 10/01/10]) and People v Pett, 2010 NY Slip Op 06826 [4th Dept 10/01/10]).
Thus, appellate attorneys may want to consider this issue when looking for issues to raise. Of course, it would be blog malpractice to suggest the possibility of urging reversal on Catu grounds without including a warning: attacking a plea as not knowing and intelligent may ultimately be harmful to your client, who might subequently receive a greater sentence (see).
In 1883, in Bergmann v Jones (94 NY 51) the Court of Appeal held that
And the Court had repeatedly reminded counsel that a general objection is generally no better as preserving an issue for appellate review than silence (see e.g., People v Vidal, 26 NY2d 249, 254 [1970] ["A general objection, in the usual course, is to no avail when overruled if not followed by a specific objection directing the court, and the adversary, to the particular infirmity of the evidence"]; People v West, 56 NY2d 662, 663 [1982] ["Although a general protest was raised against this testimony, defendant at no time objected to this testimony on the specific ground that it constituted improper bolstering. Thus, defendant has failed to preserve this issue for appellate review"]; People v Fleming, 70 NY2d 947, 948 [1988] ["The word “objection” alone was insufficient to preserve the issue for our review"]; People v Tevaha, 84 NY2d 879,881 [1988]["Defense counsel simply made a general objection when the testimony was proffered, and failed to advise the trial court that the present claimed error was the basis for his objection. The word “objection” alone was insufficient to preserve the issue for our review"]; People v. Everson, 100 NY2d 609,610 [2003] ["A party's failure to specify the basis for its general objection renders its argument unpreserved for this Court's review"]).
So one might think that attorneys would understand that in objecting they must specify the basis for their objections. Otherwise, the only person possibly fooled into thinking that the attorney meaningfully objected to the admission of inadmissible evidence is the client. Yet attorneys continue to make general objections and appellate courts continue to find the objection inadequate to preserve the issue for review.
Two recent decisions of the Appellate Division, Fourth Department should serve as further reminders of the uselessness of general objections. In People v Shire (2010 NY Slip Op 06909 [4th Dept 10/01/10]) Defendant failed to preserve for our review his contention that the admission of testimony of a police detective that defendant possessed the cocaine with the intent to sell it invaded the province of the jury because "defendant made only a general objection to the testimony."
Similarly, in People v McMillon (2010 NY Slip Op 06925 [4th Dept 10/01/10]), the Court held that a general objection did not preserve for review a claim that it was violation of the right of confrontation to permit a police officer to testify that he told the defendant that other witnesses had placed defendant at the scene of the homicide.
So please, before standing up to object, plan to say something other than "objection, your honor."
The rule is well established that where there is a general objection to evidence and it is overruled and the evidence is received the ruling will not be held erroneous, unless there be some grounds which could not have been obviated had they been specified, or unless the evidence in its essential nature be incompetent.
And the Court had repeatedly reminded counsel that a general objection is generally no better as preserving an issue for appellate review than silence (see e.g., People v Vidal, 26 NY2d 249, 254 [1970] ["A general objection, in the usual course, is to no avail when overruled if not followed by a specific objection directing the court, and the adversary, to the particular infirmity of the evidence"]; People v West, 56 NY2d 662, 663 [1982] ["Although a general protest was raised against this testimony, defendant at no time objected to this testimony on the specific ground that it constituted improper bolstering. Thus, defendant has failed to preserve this issue for appellate review"]; People v Fleming, 70 NY2d 947, 948 [1988] ["The word “objection” alone was insufficient to preserve the issue for our review"]; People v Tevaha, 84 NY2d 879,881 [1988]["Defense counsel simply made a general objection when the testimony was proffered, and failed to advise the trial court that the present claimed error was the basis for his objection. The word “objection” alone was insufficient to preserve the issue for our review"]; People v. Everson, 100 NY2d 609,610 [2003] ["A party's failure to specify the basis for its general objection renders its argument unpreserved for this Court's review"]).
So one might think that attorneys would understand that in objecting they must specify the basis for their objections. Otherwise, the only person possibly fooled into thinking that the attorney meaningfully objected to the admission of inadmissible evidence is the client. Yet attorneys continue to make general objections and appellate courts continue to find the objection inadequate to preserve the issue for review.
Two recent decisions of the Appellate Division, Fourth Department should serve as further reminders of the uselessness of general objections. In People v Shire (2010 NY Slip Op 06909 [4th Dept 10/01/10]) Defendant failed to preserve for our review his contention that the admission of testimony of a police detective that defendant possessed the cocaine with the intent to sell it invaded the province of the jury because "defendant made only a general objection to the testimony."
Similarly, in People v McMillon (2010 NY Slip Op 06925 [4th Dept 10/01/10]), the Court held that a general objection did not preserve for review a claim that it was violation of the right of confrontation to permit a police officer to testify that he told the defendant that other witnesses had placed defendant at the scene of the homicide.
So please, before standing up to object, plan to say something other than "objection, your honor."
In 1883, in Bergmann v Jones (94 NY 51) the Court of Appeal held that
And the Court had repeatedly reminded counsel that a general objection is generally no better as preserving an issue for appellate review than silence (see e.g., People v Vidal, 26 NY2d 249, 254 [1970] ["A general objection, in the usual course, is to no avail when overruled if not followed by a specific objection directing the court, and the adversary, to the particular infirmity of the evidence"]; People v West, 56 NY2d 662, 663 [1982] ["Although a general protest was raised against this testimony, defendant at no time objected to this testimony on the specific ground that it constituted improper bolstering. Thus, defendant has failed to preserve this issue for appellate review"]; People v Fleming, 70 NY2d 947, 948 [1988] ["The word “objection” alone was insufficient to preserve the issue for our review"]; People v Tevaha, 84 NY2d 879,881 [1988]["Defense counsel simply made a general objection when the testimony was proffered, and failed to advise the trial court that the present claimed error was the basis for his objection. The word “objection” alone was insufficient to preserve the issue for our review"]; People v. Everson, 100 NY2d 609,610 [2003] ["A party's failure to specify the basis for its general objection renders its argument unpreserved for this Court's review"]).
So one might think that attorneys would understand that in objecting they must specify the basis for their objections. Otherwise, the only person possibly fooled into thinking that the attorney meaningfully objected to the admission of inadmissible evidence is the client. Yet attorneys continue to make general objections and appellate courts continue to find the objection inadequate to preserve the issue for review.
Two recent decisions of the Appellate Division, Fourth Department should serve as further reminders of the uselessness of general objections. In People v Shire (2010 NY Slip Op 06909 [4th Dept 10/01/10]) Defendant failed to preserve for our review his contention that the admission of testimony of a police detective that defendant possessed the cocaine with the intent to sell it invaded the province of the jury because "defendant made only a general objection to the testimony."
Similarly, in People v McMillon (2010 NY Slip Op 06925 [4th Dept 10/01/10]), the Court held that a general objection did not preserve for review a claim that it was violation of the right of confrontation to permit a police officer to testify that he told the defendant that other witnesses had placed defendant at the scene of the homicide.
So please, before standing up to object, plan to say something other than "objection, your honor."
The rule is well established that where there is a general objection to evidence and it is overruled and the evidence is received the ruling will not be held erroneous, unless there be some grounds which could not have been obviated had they been specified, or unless the evidence in its essential nature be incompetent.
And the Court had repeatedly reminded counsel that a general objection is generally no better as preserving an issue for appellate review than silence (see e.g., People v Vidal, 26 NY2d 249, 254 [1970] ["A general objection, in the usual course, is to no avail when overruled if not followed by a specific objection directing the court, and the adversary, to the particular infirmity of the evidence"]; People v West, 56 NY2d 662, 663 [1982] ["Although a general protest was raised against this testimony, defendant at no time objected to this testimony on the specific ground that it constituted improper bolstering. Thus, defendant has failed to preserve this issue for appellate review"]; People v Fleming, 70 NY2d 947, 948 [1988] ["The word “objection” alone was insufficient to preserve the issue for our review"]; People v Tevaha, 84 NY2d 879,881 [1988]["Defense counsel simply made a general objection when the testimony was proffered, and failed to advise the trial court that the present claimed error was the basis for his objection. The word “objection” alone was insufficient to preserve the issue for our review"]; People v. Everson, 100 NY2d 609,610 [2003] ["A party's failure to specify the basis for its general objection renders its argument unpreserved for this Court's review"]).
So one might think that attorneys would understand that in objecting they must specify the basis for their objections. Otherwise, the only person possibly fooled into thinking that the attorney meaningfully objected to the admission of inadmissible evidence is the client. Yet attorneys continue to make general objections and appellate courts continue to find the objection inadequate to preserve the issue for review.
Two recent decisions of the Appellate Division, Fourth Department should serve as further reminders of the uselessness of general objections. In People v Shire (2010 NY Slip Op 06909 [4th Dept 10/01/10]) Defendant failed to preserve for our review his contention that the admission of testimony of a police detective that defendant possessed the cocaine with the intent to sell it invaded the province of the jury because "defendant made only a general objection to the testimony."
Similarly, in People v McMillon (2010 NY Slip Op 06925 [4th Dept 10/01/10]), the Court held that a general objection did not preserve for review a claim that it was violation of the right of confrontation to permit a police officer to testify that he told the defendant that other witnesses had placed defendant at the scene of the homicide.
So please, before standing up to object, plan to say something other than "objection, your honor."
A Sandoval hearing is designed to let the accused make an informed choice whether he should take the stand prior to testifying by providing a pre-trial determination of the permissible scope of cross-examination of the accused (People v Sandoval, 34 NY2d 371). Generally, a trial court's authority to change its Sandoval ruling is limited once defendant has decided to testify in good-faith reliance on the court's pretrial ruling (see, People v Powe, 146 AD2d 718, 719, l).
However, there is an important exception to this general rule which defense counsel needs to be aware of in questioning witnesses. As the Court held in People v Lyon, AD3d, 2010 NY Slip Op 06892 [10/01/10], where "a defendant's testimony conflicts with evidence precluded by a Sandoval ruling, "the defense opens the door' on the issue in question, and the [defendant] is properly subject to impeachment by the prosecution's use of the otherwise precluded evidence" (People v Fardan, 82 NY2d 638, 646; see People v Rodriguez, 85 NY2d 586, 591)." Indeed, in Fardan the Court held that the exception applies not only to the defendant's testimony but also when "a witness for the defense testifies to facts that are in conflict with the precluded evidence."
However, there is an important exception to this general rule which defense counsel needs to be aware of in questioning witnesses. As the Court held in People v Lyon, AD3d, 2010 NY Slip Op 06892 [10/01/10], where "a defendant's testimony conflicts with evidence precluded by a Sandoval ruling, "the defense opens the door' on the issue in question, and the [defendant] is properly subject to impeachment by the prosecution's use of the otherwise precluded evidence" (People v Fardan, 82 NY2d 638, 646; see People v Rodriguez, 85 NY2d 586, 591)." Indeed, in Fardan the Court held that the exception applies not only to the defendant's testimony but also when "a witness for the defense testifies to facts that are in conflict with the precluded evidence."
A Sandoval hearing is designed to let the accused make an informed choice whether he should take the stand prior to testifying by providing a pre-trial determination of the permissible scope of cross-examination of the accused (People v Sandoval, 34 NY2d 371). Generally, a trial court's authority to change its Sandoval ruling is limited once defendant has decided to testify in good-faith reliance on the court's pretrial ruling (see, People v Powe, 146 AD2d 718, 719, l).
However, there is an important exception to this general rule which defense counsel needs to be aware of in questioning witnesses. As the Court held in People v Lyon, AD3d, 2010 NY Slip Op 06892 [10/01/10], where "a defendant's testimony conflicts with evidence precluded by a Sandoval ruling, "the defense opens the door' on the issue in question, and the [defendant] is properly subject to impeachment by the prosecution's use of the otherwise precluded evidence" (People v Fardan, 82 NY2d 638, 646; see People v Rodriguez, 85 NY2d 586, 591)." Indeed, in Fardan the Court held that the exception applies not only to the defendant's testimony but also when "a witness for the defense testifies to facts that are in conflict with the precluded evidence."
However, there is an important exception to this general rule which defense counsel needs to be aware of in questioning witnesses. As the Court held in People v Lyon, AD3d, 2010 NY Slip Op 06892 [10/01/10], where "a defendant's testimony conflicts with evidence precluded by a Sandoval ruling, "the defense opens the door' on the issue in question, and the [defendant] is properly subject to impeachment by the prosecution's use of the otherwise precluded evidence" (People v Fardan, 82 NY2d 638, 646; see People v Rodriguez, 85 NY2d 586, 591)." Indeed, in Fardan the Court held that the exception applies not only to the defendant's testimony but also when "a witness for the defense testifies to facts that are in conflict with the precluded evidence."
Wednesday, September 15, 2010
When an appellant successfully challenges a conviction which followed a trial, the imposition of an increased sentence after a retrial is presumed to violate the Due Process Clause of the New York State Constitution, even where the retrial is before a different judge than imposed the original sentence (People v Van Pelt, 76 NY2d 156, 158 [1990]).
There is no parallel presumption of vindictiveness when a person who successfully challenges a conviction obtained pursuant to a guilty plea is then tried, convicted, and sentenced to a longer sentence than originally imposed. Thus, appellate counsel must warn would be appellants that a successful appeal of a guilty plea might be Pyrrhic victory.
Today's news provides a clear illustration of these risks.
This past February, the Appellate Division, Fourth Department vacated Quinntarius White's conviction for depraved murder following guilty plea because the plea colloquy established that Mr. White acted intentionally and thus, the plea was not at his guilty plea was not knowingly, voluntarily and intelligently entered (People v White,70 AD3d 1343 [4th Dept 2010]). Thus. Mr. White's 15 year to life sentence was vacated.
As reported in today's Rochester Democrat and Chronicle (see) Mr. White was then tried, convicted of intentional murder and sentenced to 20 years to life.
Perhaps Mr. White's longer sentence might help others better appreciate the risks of challenging a guilty plea.
There is no parallel presumption of vindictiveness when a person who successfully challenges a conviction obtained pursuant to a guilty plea is then tried, convicted, and sentenced to a longer sentence than originally imposed. Thus, appellate counsel must warn would be appellants that a successful appeal of a guilty plea might be Pyrrhic victory.
Today's news provides a clear illustration of these risks.
This past February, the Appellate Division, Fourth Department vacated Quinntarius White's conviction for depraved murder following guilty plea because the plea colloquy established that Mr. White acted intentionally and thus, the plea was not at his guilty plea was not knowingly, voluntarily and intelligently entered (People v White,70 AD3d 1343 [4th Dept 2010]). Thus. Mr. White's 15 year to life sentence was vacated.
As reported in today's Rochester Democrat and Chronicle (see) Mr. White was then tried, convicted of intentional murder and sentenced to 20 years to life.
Perhaps Mr. White's longer sentence might help others better appreciate the risks of challenging a guilty plea.
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