NY Defender Digest articles from August 2002

NY Defender Digest archives from August 2002

May an identification be suppressed if it results from a lack of probable cause to have detained the suspect?(Brief Article)
August 16, 2002... And is the same result compelled if the suspect's detention is unduly prolonged before being placed in a lineup? The answer to both questions is yes. For example, in People v. Dubinsky, 289 AD2d 415, 734 NYS2d 245, (2d Dept, 2001) the victim...

Under what circumstances may police open locked or closed containers found within a vehicle or in defendant's possession?(Brief Article)
August 16, 2002... Prosecutors will often seek to justify such nonconsensual search as `incident to arrest.' However, the search incident to arrest doctrine provides a weak justification for a warrantless search of a closed or locked container, particularly...

Is a federal defendant still subject to the Juvenile Delinquency Act if he turns 21 years old prior to his sentencing?(Brief Article)
August 16, 2002... The Juvenile Delinquency Act, 18 USC 5031 et. seq., defines a juvenile as a person who has not reached his 18th birthday at the time of the commission of the offense, and not yet 21 at the time of the disposition of the case. The Act, however...

Will a delay in defendant's arraignment require suppression of statements made during the delay?(Brief Article)
August 16, 2002... The theory here is that had the arraignment been prompt, CPL 140.20, defendant's right to counsel would have sooner attached, precluding interrogation of the suspect in the absence of counsel, People v. Samuels, 49 NY2d 218. But see, People...

When is a jury's verdict deemed repugnant?(Brief Article)
August 16, 2002... First, any claim the a jury has brought forth verdicts upon submitted counts that are repugnant must be brought to the court's attention before the jury is discharged in order to preserve the issue for appellate review. Second, the...

When will the `merger doctrine' in which a kidnapping merges into a related crime compel dismissal of the kidnapping charge?(Brief Article)
August 16, 2002... The `merger doctrine' precludes conviction for kidnapping based on acts which are `so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal...

Has the distinction between intentional and depraved indifference murder become blurred?(Brief Article)
August 16, 2002... Perhaps so. PL 125.25(2) is defined as acting `... recklessly engages in conduct which creates a grave risk if death...' Notwithstanding the distinct definitions between intentional murder, PL 125.25(1), and depraved murder, defendants are...

May a conviction for felony murder or felony assault stand if one is acquitted of the underlying felonies?(Brief Article)
August 16, 2002... Only certain enumerated felonies are will support felony murder, PL 125.25(3), while any underlying felony will support felony assault, PL 120.10(4). Both statutes refer to the commission of another felony or an attempt, People v. Berzups, 49...

Lesser included offenses (12th revision).
August 2, 2002... Lesser Included Offenses (12th Revision) The following assumes a reasonable view of the evidence supports such lesser charges, People v. Glover, 57 NY2d 61. See also, CPL 300.50, People v. Martinez, 81 NY2d 810, People v. Butler, 84...