· People v Crisler (KA 08-00621) – D appealed from guilty plea to CPW-2nd. Police officers’ initial observation of D’s behavior gave them an objective, credible reason to approach D and ask him questions, in a manner devoid of harassment and intimidation, about where he had been. D’s response to request for information and officers’ observation of bulge in D’s pocket justified the officer’s request for D to remove his hand from his pocket. Police had reasonable suspicion to pursue D when he fled in response. Coat dropped during pursuit was lawfully obtained. Also, by pleading guilty, D forfeited his contention that suppression hearing should have been adjourned so D could obtain more evidence to present at hearing.
· People v Brown (KA 09-02337) – Court rejected argument that trial tax was imposed. Noted that D was eligible to be sentenced as persistent felony offender but the sentencing court rejected the People’s request. Lower court did not err by failing to appoint special prosecutor or change venue. That DA was a defendant in civil action brought by D did not prejudice D.
· People v Bussey (KA 07-01490) – D moved to dismiss superseding indictment pursuant to CPL 30.30. Trial court properly excluded 14 days from time period because People became aware less than 24 hours before arraignment that D, who had previously been released, was in custody in a different county on an unrelated charge. The People could not by the exercise of due diligence secure D’s presence at arraignment.
· People v Campbell (KA 08-02049) – Court erred in denying CPL 440.10 motion w/o conducting a hearing. D argued that defense counsel did not tell him about possible exculpatory evidence before D pleaded guilty during seventh day of trial. Hearing should have been held regarding D’s allegation that counsel was aware of information and failed to tell him about it. “[T]he issues raised by the motion are sufficiently unusual and suggest searching investigation.” Case held and remitted for hearing.
· People v Coke (KA 09-01440) – Waiver of appeal held valid. It was explained as a condition of the plea, rather than a consequence, and, record showed that D understood it to be a right separate and distinct from other rights forfeited as part of the plea. D’s challenge to sentence held to be forfeited as part of waiver of plea (“encompassed by”).
· People v Colon (KA 09-01788) – Conviction held not to be supported by legally sufficient evidence. D charged w/ escape-1st. He was arrested after parole officer took him into custody (w/o a warrant). Because D was arrested w/o a warrant, his arrest was not “authorized.” As such, he could not be convicted of escape-1st. Court rejected that D was arrested pursuant to a valid “verbal” warrant and even if a valid warrant was signed after D was taken into custody his arrest was not authorized.
· People v Cosby (KA 06-03311 & KA 09-01036) – Primary issue was whether D was denied effective assistance of counsel based on counsel’s failure to inform D that D had the final decision as to whether to testify on his own behalf. Appellate counsel moved under CPL 440.10 to vacate judgment. D, counsel, and D’s family members testified. D testified to what he would have said at trial. Hearing court denied motion, finding that D did advise counsel of his wish to testify and that counsel advised him against it, but argued that D did not establish that he would have testified to his version of events at trial. Fourth Dept holds that counsel has a duty to inform a D of his right to testify, even against the advice of counsel. Counsel here thus erred, but D was not denied effective assistance (gave same reason as hearing court).
· People v Cruz (KA 09-00835) – D argued plea was not voluntary because based on length of pre-plea incarceration and desire to obtain medical treatment in state prison. Court held that argument was not preserved because no motion not withdraw plea was made. Further, this was not a rare case where preservation was not required because trial court did inquire further when facts regarding voluntariness were brought to its attention.
· People v Cummings (KA 10-01402) – SORA level three risk determination was correct. D was convicted of rape by forcible compulsion. Changes to rape law did not make D’s conduct less culpable. Change involved closing loophole regarding consent.
· People v Curry (KA 07-02678) – D appealed from guilty plea to CPW-2nd. Police got report of a fight between 2 black males w/ handguns. Arrived at scene and walked to market. Police saw D in doorway. Based on information known to officer and D’s furtive behavior, officer had reasonable suspicion to detain D, and then to frisk him once D moved his hand toward his waistband.
· People v Ditucci (KA 10-01941) – D not denied right of confrontation on basis that court did not disqualify prosecutor and did not grant application to call prosecutor as witness (to testify as to influence over victim). Counsel was free to cross-examine victim on that issue.
· People v Donahue (KA 08-01563) – 14-year delay between death of victim and indictment of D did not violate D’s right to due process. People established good cause: D was not person of interest until 2007. There was not enough evidence to charge D until Sept 2007. Court also noted seriousness of underlying charge: murder-2nd.
· People v Drennan (KA 09-02148) – Police questioned D and parents at their residence regarding whereabouts of victim. D voluntarily agreed to continue to interview at PD; arranged own transportation. Was interviewed 30 min at police station before Miranda warning; questioning was “largely investigatory in nature.” Statements made before Miranda warning were not the product of custodial interrogation.
· People v Williams (KA 07-00754) – finding aggregate sentence of 150 years harsh and excessive (robbery 1st, grand larceny 3rd, robbery 2nd [multiple counts of each]), but because aggregate is reduced by operation of law, court found no reason to modify.
· People v Swan (KA 09-02349) – D argued he did not escape from “a detention facility” (as defined in PL § 205.10 (1)) because he escaped while gardening outside the grounds of the jail. Court determined that D was gardening on land owned by Cayuga County, used exclusively by the jail, and inmates were escorted to the area and supervised by guards. Area was therefore part of a detention facility.
· People v Schafer (KA 10-01301) – (1) 6-year-old victim spontaneously testified regarding uncharged acts of oral sodomy. Jury requested read-back of victim’s testimony. Court directed reporter not to read back part of testimony regarding uncharged act. Failure to read back all testimony did not seriously prejudice D because omitted testimony was insignificant and did not support D’s defense. (2) admission of nurse practitioner’s examination, which included description of sexual assault incident, was proper because the description was germane to treatment.
· People v Powell (KA 10-00024) – Court reject IAC argument: (1) counsel’s alleged improper cross-examination of a police investigator re: identification evidence and procedures was strategic; (2) D failed to allege that expert testimony would have been helpful to jury; (3) D did not demonstrate lack of strategy for failure to request circumstantial evidence charge, among other charges/instructions
· People v Peterkin (KA 07-00393) – Trial court properly refused to suppress in-court id after victim viewed D’s photo in newspaper and did not err by refusing to require prosecution to establish victim had independent basis for the id. In-court id was not tainted even though lineup in which victim identified D was conducted after victim viewed a photo array. Multiple pre-trial id procedures are not inherently suggestive. Comment by police that she believed they had arrested same person victim id’ed did not render lineup unduly suggestive because there was no suggestion as to which lineup participant was that individual. Prosecutor’s reference to prior photo id was ill-advised but not tantamount to coaching to make particular selection at line-up. Trial court’s refusal to go above $1K statutory limit for id expert not prejudicial because this was not a case turning on id w/o much corroborative evidence.
· People v McCrimager (KA 09-01304) – Sentencing court failed to apprehend the scope of its sentencing discretion in connection with the term of imprisonment to be imposed. Court informed D of incorrect minimum and maximum that could be imposed during plea (did not take into account 2009 amendments to drug sentence laws). Court vacated sentence and remitted for resentencing.
· People v Lawrence (KA 09-01206) – where the elements of two crimes overlap, a prosecutor has broad discretion to decide what crime to charge. Decision to charge predatory sexual assault against a child (A-II) rather than rape (B) did not violate D’s right to equal protection or due process. Challenge to expert testimony about CSAAS rejected.
· People v Ingram (KA 09-02382) – D was passenger in pulled over car. Driver did not have license. Police asked D for name, and D gave false name. Police told D he could be prosecuted for false personation if he gave a false name again. Police was able to issue caution and ask for name pursuant to common law inquiry. Police had PC to arrest and search once D gave a false name again.
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