NY Defender Digest articles from June 2003

NY Defender Digest archives from June 2003

May a 911 tape be admitted under the excited utterance hearsay exception if the caller is available to testify?
June 27, 2003... The excited utterance exception to the rule against hearsay must also meet the requirements of the Confrontation Clause, People v. James, 93 NY2d 620 (1999), Idaho v. Wright, 497 U.S. 805 (1990). The admissibility of a 911 tape falls within...

May a relative or third party invoke the right to counsel on behalf of a criminal defendant in police custody?
June 27, 2003... The answer to this question has enjoyed a rather checkered history amongst the lower courts of New York and courts of sister states. The argument in favor of a third party informing police that an attorney has been retained thus barring...

May a strip or body cavity search of the defendant be conducted as a search incident to arrest or upon booking?
June 27, 2003... Unless more serious indicia of criminal activity or concealment of weapons is known or suspected, Shain v. Ellision, 273 F3d 56 (2d Cir, 2001), police may not conduct a strip search or the more intrusive body cavity search at the scene upon a...

Supreme Court sets criteria before drugs may be involuntarily administered to mentally ill in order to render a defendant competent to stand trial.
June 27, 2003... Considering a question raised in two prior decisions, Riggins v. Nevada, 504 U.S. 127 (1992), and Washington v. Harper, 494 U.S. 210, the High Court had concluded that the Constitution permits the government to involuntarily administer...

Does a waiver of appeal preclude a claim of ineffective assistance to the extent that it impacts upon the voluntariness of the guilty plea itself?
June 27, 2003... The answer is no. A waiver of the right to appeal will generally encompass the severity of a sentence upon a guilty plea where no particular promise of a sentence was made, People v. Lococo, 92 NY2d 825. But see, People v. Shea, 254 AD2d 512,...

Supreme Court strikes down as ex post facto repeal of statute of limitations enacted after pre-existing period had expired.(United States Supreme Court)
June 27, 2003... Dealing a blow to the numerous states which have recently chosen to eliminate the statute of limitations for certain offenses, the High Court has stricken a California law that revives causes of action barred by prior limitations statutes. In...

Supreme Court once again reverses for ineffective assistance of counsel.
June 27, 2003... For the second time this term, the High Court has addressed itself to a defendant's claim of ineffective assistance, and in both cases agreeing with the defendant. In no prior term in recent memory has the Court found for a defendant in two...

What is the remedy if counsel, despite request fails to timely file defendant's notice of appeal in a federal court?(Brief Article)
June 27, 2003... Defense counsel's failure to file a timely appeal in a criminal case, when requested, constitutes ineffective assistance of counsel, entitling defendant to relief, Garcia v. U.S., 278 F3d 134 (2d Cir, 2000). Courts have differed, however, as...

Court of Appeals redefines distinction between the elements for intentional and depraved indifference murder.
June 13, 2003... Answering questions left unresolved by People v. Oswaldo Sanchez, 98 NY2d 373 (2002), the Court has re-visited what constitutes the factual distinction between intentional and depraved murder, People v. Hafeez, -- NY2d --, (6/10/03). In...

Under what circumstances is a defendant entitled to post-conviction DNA testing and may it be done at county expense?
June 13, 2003... CPL 440.30(1-a), requires courts to grant motions for DNA testing related to convictions occurring before January 1, 1996 where the movant demonstrates, among other things, 'that within "a reasonable probability" the test results would have...

To what extent is a federal defendant entitled to a downward departure for family circumstances?
June 13, 2003... Guidelines [section] 5H1.6 provides that a defendant's '[f]amily ties and responsibilities... are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range.' Because the Guidelines disfavor...

New amendments to guidelines will frustrate ability of sentencing courts to provide downward departures.
June 13, 2003... Known as section 401 of the 'Prosecutorial Remedies and Tools Against The Exploitation of Children Today Act of 2003,' the new sections effective this November, will also make it more difficult for a court to depart downward in cases beyond...

When is a witness under a party's control and available such that the failure to call may entitle the other party to a missing witness instruction?
June 13, 2003... The 'missing witness' instruction allows a jury to draw an unfavorable inference based on a party's failure to call a witness who would normally be expected to lend support to that party's version of events. Further, a request for such...

May one be guilty of forgery is he enters his own name as payee to check already signed by the maker?
June 13, 2003... A defendant cannot be guilty of forgery when he enters his name on an otherwise valid negotiable instrument. Forgery, PL 170.10, concerns the execution of an instrument which is not itself authentic, and there is nothing unauthentic or...

When will an Allen-type supplemental instruction to a deadlocked jury be deemed coercive?
June 13, 2003... When faced with a deadlocked jury a trial court must decide whether to declare a mistrial or provide the jury with a supplemental instruction directing it to continue deliberating and try to reach agreement, Allen v. U.S., 164 U.S. 492...

How does sentencing as persistent violent from that of a persistent felony offender?
June 13, 2003... One significant distinction is that in the case of a persistent violent offender, PL 70.08, a court must impose sentence as a persistent violent, whereas in the case of a persistent, PL 70.10(2), the court has discretion as to whether...