NY Defender Digest articles from July 2004

NY Defender Digest archives from July 2004

Lesser included offenses (14th revision).(Illustration)
July 30, 2004... Lesser Included Offenses (14th 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. Barney,...

1st Dept holds Crawford v. Washington bars introduction of non-testifying codefendant's plea allocution at defendant's trial.
July 16, 2004... As we pointed out several times, the recent decision by the Supreme Court in Crawford v. Washington, 124 S.Ct. 1345 has altered the landscape when it comes to introducing into evidence out-of-court statements which are testimonial in nature...

Is the Supreme Court ruling in Blakely v. Washington, applicable to the federal Sentencing Guidelines?
July 16, 2004... Blakely, decided June 24th, held that a trial judge may not impose an 'exceptional sentence' beyond a statutory standard maximum upon its own finding of any aggravating factors essential to the enhanced sentence. Although Blakely concerned a...

Is an indictment defective if the People refuse to grant defendant's request to call a person as a witness?
July 16, 2004... The answer is yes, where the prosecutor provides misleading answers to the grand jury's inquiry which impedes their investigation. Under CPL 190.50(6) the decision whether to grant a defendant's request to call a person as a witness is solely...

May a federal court, in determining the amount of a fine, consider defendant's resources and the Government's loss?
July 16, 2004... The answer is generally not. First, a court is free to consider 'defendant's income, earning capacity, and financial resources' and 'any pecuniary loss inflicted upon others as a result of the offense', 18 USC [section] 3572(a)(1),(3)....

Does the presentation of evidence after a court denies a motion to dismiss at the close of the People's case waive subsequent review of that determination?
July 16, 2004... This rather thorny question was addressed in People v. Hines, 97 NY2d 56 (2001) and has since been the subject of conflicting interpretations by the Appellate Divisions. The issue in Hines was whether a trial court which denies a motion to...

Under what circumstances may a federal defendant withdraw his guilty plea?
July 16, 2004... Rule 11(d), Fed.R.Crim.P., states that a guilty plea may be withdrawn (1) before the court accepts the plea, for any reason or no reason, (2) after the court accepts the plea, but before it imposes sentence if (A) the court rejects a plea...

May one be convicted of driving as 'intoxicated', VTL [section] 1192(3) where the evidence points only to being under the influence of drugs, VTL [section] 1192(4)?
July 16, 2004... The answer here concerns an inquiry into the definition of 'intoxication.' The statute, VTL 1192(1), refers to being impaired by 'alcohol', while subdivision (3) employs the word 'intoxicated'. Subdivision (4) on the other hand, specifically...

Court of appeals invalidates statutory jury instruction in death cases.
July 2, 2004... The death penalty in New York is dead. The present jury instruction in death cases where the jury is deadlocked, CPL 400.27(10), and told a judge will impose a sentence which will include parole may result in a jury unnecessarily imposing...

U.S. Supreme Court strikes down state sentencing guidelines where enhancing factors are determined by a judge rather than by a jury.
July 2, 2004... In a blow to the Bush Administration, and conservative politicians, the Supreme Court, expanding its prior holdings in Apprendi v. New Jersey, 530 U.S. 266 (2000), and Ring v. Arizona, 536 U.S. 584 (2002), has now ruled that a judge may not...

What is the maximum term which a federal defendant may be incarcerated for a violation of supervised release, 18 USC [section] 3583(e)(3)?
July 2, 2004... Section 3583 governs the imposition, modification, or revocation of supervised release. Supervised release differs from probation in that probation is imposed instead of imprisonment, while supervised release is imposed after imprisonment. As...

Is a second Mirandaized confession admissible in evidence if it was preceded by an earlier unwarned statement?
July 2, 2004... Under New York law the answer would be no, unless the two statements can be said to have been sufficiently attenuated from each other, People v. Chapple, 38 NY2d 112, People v. Bethea, 67 NY2d 363, such that the suspect is placed in a...

Does a suspect possess a constitutional right not to identity himself during a stop based on reasonable suspicion?
July 2, 2004... The Supreme Court has previously considered various 'stop and identify' statutes. Brown v. Texas, 443 U.S. 47 (1979) held that absent a factual basis for detaining a suspect, he need not identify himself. Later, in Kolender v. Lawson, 461...

Does the admission of a 911 recording which reports observations of events violate a defendant's right to confrontation?
July 2, 2004... The answer to this involves an inquiry into the recent U.S. Supreme Court decision of Crawford v. Washington, 124 S.Ct. 1354, (3/8/04) where the High Court ruled that the 6th Amendment right of Confrontation prohibits the admission of...

Is a formal vote of 12 grand jurors necessary before a charge may be dismissed and if not may the submission be continued without leave of court?
July 2, 2004... The answer to this question has added significance in the situation where the prosecutor, realizing, there were not enough votes (at least 12) for an indictment, asks the grand jury to dismiss and then reconvenes where an indictment is voted...