NY Defender Digest articles from January 2004

NY Defender Digest archives from January 2004

Under what circumstances may documents generated during a police investigation be released to a criminal defendant under the Freedom of Information Law (FOIL)?
January 30, 2004... The purpose of FOIL, Public Officers Law [section] 84, et seq, is to promote open government and public accountability by imposing upon governmental agencies a broad duty to make their records available to the public. See, Gould v. NYC Police...

Will a Miranda waiver serve to admit into evidence previous statements obtained in violation of the right to counsel?
January 30, 2004... At the state level the answer is generally no. Under the rationale of People v. Chapple, 38 NY2d 112 a second confession even if preceded by Miranda warnings can be tainted by an earlier unwarned statement if there is insufficient attenuation...

What is the remedy if a court imposes restitution upon sentencing which was not mentioned as part of a plea agreement?
January 30, 2004... The majority of courts which have considered this question have held that the defendant should be afforded an opportunity to either withdraw his plea or accept the greater sentence of restitution, People v. Toms, 293 AD2d 768, 739 NYS2d 652...

Is a federal defendant entitled to receive the pre-sentence report of his codefendant(s) prior to his own sentencing?
January 30, 2004... The argument in favor of having possession of the pre-sentence report (PSR) of a codefendant is many; (1) it may contain information exculpatory to the defendant upon sentencing, (2) it may show that the codefendant(s) attempted to curry...

What type of structure will rise to a 'building' for purposes of burglary, 3d, PL 140.20, criminal trespass and arson?
January 30, 2004... Distinguished from a 'dwelling', People v. Quattlebaum, 91 NY2d 744, the statutory definition of a 'building' for burglary PL 140.00(2), trespass and arson, PL 150.00(1) is of little assistance. Those sections state that it includes 'any...

What is the correct order in which lesser included offenses must be considered by a jury considering two theories of murder?
January 30, 2004... The answer is in descending order of culpability. This issue was addressed in People v. Johnson, 87 NY2d 357 as to how a verdict sheet should read when alternate theories of murder and lesser manslaughter offenses are considered by a jury. In...

May aggravated criminal contempt serve as the underlying felony to elevate simple assault to felony assault, 2d, PL 120.05(6)?
January 30, 2004... The answer is no, with the net result that one may not be convicted of assault, 2d, when the same assaultive conduct forms the basis for a conviction for aggravated criminal contempt, PL 215.52, a class D felony. The first court to consider...

What is the remedy for a Batson violation if the improperly challenged juror had already been excused and was not available?
January 30, 2004... An arguably discriminatory challenge under Batson v. Kentucky, 476 U.S. 79, involves a three-step process. First, the party complaining of the strike must make a prima facie showing that the strike was for a discriminatory purpose, People v....

U.S. Supreme Court upholds vehicle checkpoints to seek information for crimes committed by others.
January 16, 2004... The Supreme Court has distinguished between a roadblock checkpoint aimed at general crime control with the vehicle operators themselves as targets and the same stop for the purpose of seeking information for a crime committed by another. In...

Does robbery, 1st, PL 160.15(3) and burglary, 2d, PL140.25(1)[c] 'use or threaten the immediate use of a dangerous instrument' require proof that defendant 'actual]y possessed' such instrument?
January 16, 2004... The answer is yes, and if this element is absent robbery, 1st, must be reduced to that of the second or third degree and burglary, 2d, reduced to burglary, 3d, PL 140.20. Robbery, 1st, involves forcibly stealing property and (1) causing...

May an infant under age 9 testify before the grand jury if his testimonial capacity is not both tested and recorded?
January 16, 2004... CPL 60.20 was amended to the extent of lowering the age at which a witness is presumed competent to testify under oath from 12 to nine years of age. The statute provides that a child below the threshold of nine years may still be offered as a...

2d Circuit rejects admission of anonymous 911 call under a claimed 'present sense impression' hearsay exception.
January 16, 2004... The 'present sense exception' to the rule against hearsay was first announced in People v. Brown, 80 NY2d 729, where the admission of a 911 tape made by a hearsay declarant of a burglary in progress was upheld. The caller turned out to have...

May the People resubmit a dismissed indictment upon newly discovered evidence?
January 16, 2004... The answer is yes, in very limited situations. For example, if a defendant's motion to suppress is granted, before the People may seek to appeal they must file a statement asserting that they cannot prevail at trial without such evidence, CPL...

Is a jury charge erroneous if it instructs as to justification on both indicted and lesser counts but fails to state that an acquittal on the top count bars consideration of the lesser?
January 16, 2004... The answer is yes. The rule here is that where a defendant, for example, has been indicted for murder and the defense is justification or self-defense, a court should not only instruct the jury as to the lesser offenses of manslaughter, 1st...

May one be sentenced consecutively upon a conviction for criminal use of a firearm if the same weapon is an element of another felony of the same degree?
January 16, 2004... This question was answered in People v. Brown, 67 NY2d 555 (1996), where defendant was convicted of robbery, 1st, and criminal use of a firearm in the 1st degree, PL 265.09 ('possession or display'). Both offenses are class B felonies for...

To what extent are provisions of a proffer agreement permitting use of defendant's statements at trial enforceable?
January 16, 2004... This is one possible pitfall that an unsuspecting or perhaps inexperienced lawyer should be made aware of. Often times the Government prosecutors will request that counsel bring his or her client in for a 'proffer session' at which a possible...

Defendant's request to charge, PL 220.25(2) presumption--narcotics in a room in open view (following applicable section of Article 220. defining unlawful possession where statutory exceptions not applicable) * [replaces all previous charges on this subject].
January 16, 2004... I now charge you with respect to the statutory presumption contained in Penal Law section 220.25(2): The fact of knowing possession of a narcotic drug [or narcotic preparation, marijuana, or phencyclidine] on the part of each and every...

Will the 'public safety' exception permit police, upon an arrest, to ask the suspect if he 'has anything on him that could hurt the officers' in the absence of Miranda warnings?
January 2, 2004... The answer here involves an inquiry to what is known as the 'public safety' exception to the Miranda requirements first enunciated in New York v. Quarles, 467 U.S. 649 (1984). See, Dickerson v. U.S., 530 U.S. 428 (2000) (reaffirming Miranda)....

Under what conditions may a vehicle be properly subjected to an inventory search?
January 2, 2004... First, a vehicle generally must be impounded. Second, an inventory must be conducted pursuant to a written standard procedure of the particular police agency which is reasonable, so that the search is not left to the sole discretion of the...

May a Y.O. convicted of a sexual assault be properly sentenced to a ten-year period of probation?
January 2, 2004... The answer is yes, as the result of a 2001 amendment to PL 65.00[3](iii). The period of probation for a felony sexual assault, which now includes the class E felony of rape, 3d, PL 130.25, was increased to 10 years. A 'sexual assault' is...

May the prosecution prove its case, absent the complainant, by the use of an excited utterance hearsay exception?
January 2, 2004... The answer is yes, particularly if other indicia of guilt are present. An exicted utterance, or spontaneous declaration as it was once called, is an exception to the rule against hearsay. Generally, the exception will only operate where the...

Is one guilty of forgery, 2d, PL 170.10(1) if he alters a shipping label directing unpaid merchandise to be delivered to him?
January 2, 2004... The answer is no if we closely examine the distinction between forgery, 2d, PL 170.10(1) and forgery, 3d, PL 170.05. Forgery in the 2d degree under subdivision (1) concerns the altering or falsely making or completing a written instrument...

Appellate courts finding discretionary persistent sentences excessive.
January 2, 2004... Jail overcrowding or otherwise, the various Appellate Division's of late are vacating the trial court's discretionary persistent sentences in the interest of justice. Unlike a persistent violent offender, PL 70.08, where a court must impose...

Does a court have authority to extend the period of a conditional discharge or modify its conditions after the expiration of the period of the sentence?
January 2, 2004... The answer to the first part of the question is yes, provided that the extension is made before the expiration or termination of the period of the conditional discharge. The answer to the second part of the above questions is no. This...

May a court vacate an otherwise proper guilty plea absent defendant's consent?
January 2, 2004... Unless there is new evidence, fraud or a clerical error, People v. Minaya, 54 NY2d 360, the answer is no. The authority of a court to alter a sentence, particularly after defendant has begun serving it, is very limited, CPL 430.10, Matter of...