NY Defender Digest articles from May 2002

NY Defender Digest archives from May 2002

May a sentence of probation or a suspended sentence be imposed for a minor offense if defendant is not represented by counsel?(Brief Article)
May 24, 2002... In an expansion of the 6th amendment right to counsel, the U.S. Supreme Court has said no, Alabama v. Shelton,--U.S.--, (5/20/02). In 1972 the Court held that an indigent defendant must be appointed counsel in any prosecution, be it felony or...

How do the People prove that the ten-year period for determining whether one is a second violent offender has been tolled?(Brief Article)
May 24, 2002... In determining whether a defendant may be sentenced as either a second violent offender, CPL 400.15, or a persistent violent offender, CPL 400.16, sentences imposed more than ten years ago will not count, unless the prosecution can prove at a...

U.S. Supreme Court rules its decision in Apprendi v. New Jersey not retroactive unless objection was made at trial.(Brief Article)
May 24, 2002... Reasoning that a court is not deprived of jurisdiction when it imposes a sentence for an offense not charged in the indictment, the High Court has concluded that an Apprendi violation, which took place before its decision, will not render a...

Under what conditions must a trial court allow defense questioning bearing upon a witness' motive to fabricate?(Brief Article)
May 24, 2002... `The exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination', Davis v. Alaska, 415 U.S. 308. In Davis, the Supreme Court reversed a burglary conviction...

Are convictions that became final after a conspiracy has begun but before it ended deemed `prior convictions' for purposes of 21 USC 841(b)(1)(A)?(Brief Article)
May 24, 2002... The answer to this one is of particular importance as 21 USC 841(b)(1)(A) provides that a person who commits a narcotics violation involving more than 50 grams of crack `after two or more prior convictions for a felony drug offense have...

What is the maximum term of an order of protection if defendant is sentenced to a term of incarceration?(Brief Article)
May 24, 2002... Under CPL 530.13(4) (victims other than family offenses) the duration of a permanent order of protection in the case of a felony `shall not exceed the greater of: (i) 5 years from the date of such conviction, or (ii) 3 years from the date of...

Will standard lineup viewings by a witness give way to sequential and double-blind lineups?(Brief Article)
May 24, 2002... Several lower courts in the New York City area have of late granted defense requests that the suspect and fill-ins be viewed one at a time in what has come to be known as a sequential lineup. The notion here is that a sequential lineup will...

Lower court rules testimony of eyewitness expert admissible in absence of a Frye hearing.(Brief Article)
May 24, 2002... In People v. Lee, 96 NY2d 157 (2001), the Court explained that in certain circumstances it would be error for a trial court to refuse to permit the defense to offer the testimony of an expert in the field of eyewitness identification. In Lee...

When is incarceration mandatory for a violation of probation?(Brief Article)
May 24, 2002... Probationary sentences are governed by PL 65.00 which, when applicable, provides for probationary terms of up to five years for a felony, other than a class A-II or a class B felony defined in article 220 (narcotics) or a sexual assault. The...

May a defendant introduce evidence of prior false statements to show that a present confession is unreliable?(Brief Article)
May 24, 2002... The answer is yes, although the prosecution would be allowed to rebut defendant's trial testimony with his contrary Huntley hearing testimony. In People v. Bennett, 266 AD2d 558, 699 NYS2d 122 (3d Dept), defendant was allowed to introduce...