The Appellate Division, Third Department, provides another example of why it is important to speak to an attorney before speaking with the police, even in a traffic stop. New York DWI is not limited to alcohol. As prescription medications become more prescribed and more prevalent in the lives of New Yorkers, one must understand that Driving Under the Influence and New York Driving While Ability Impaired can occur with a mix of legal drugs and alcohol. New York Driving While Ability Impaired can result from taking legally prescribed medication in excess or to the point of intoxication. Of course, Driving While Ability Impaired can also result from taking illegal medications, such as prescription painkillers, and driving a vehicle.

New York Criminal Defense attorneys and clients should know that even over the counter medications can impair one’s ability to a drive a vehicle. Medications have obvious warnings on them: do not operate heavy machinery, do not take more than a certain amount, etc. One must be diligent in what he or she ingests. Additionally, one must be very careful not to get behind the wheel of a car under the influence of any intoxicant. Lastly, should you be confronted by the police, whether for a traffic stop or because you were in a car accident, speak to an attorney: Call the Law Offices of Cory H. Morris – 631-450-2515.

This case involved a car crash where it was alleged that the driver was driving while his ability to do so was impaired that resulting in death. What is key to note is that the driver demanded an attorney – something everyone should do when questioned by the police – and his indelible right to counsel attached (in New York the right to counsel is indelible) which the police violated and, as a result, the chemical tests were suppressed.

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The defendant in Avinger was charged and convicted of  burglary in the third degree, criminal possession of stolen property in the third degree, possession of burglar’s tools, and criminal mischief in the fourth degree. The Second Department holds that the evidence must be suppressed.

Upon suspicion of a burglary, New York City Police Department detectives went to a home to investigate. There was no answer at the door and the New York City Police Department (NYPD) detectives decide to enter the yard of the house. One should note this pivotal point in the factual pattern.

The NYPD then walk through the yard of another home and enter the rear yard of a neighboring home. The New York City Police Department detectives then walked through an alleyway that provided access to the rear of the home at issue. Once there, NYPD Detectives found a car bearing the license plate of which they were investigating. Upon further searching, the detectives peered through the window of a garage discovering video game consoles and video games. Detectives later learned that these video game items were the subject of a burglary. The detectives found and arrested the defendant at the premises. At issue becomes the search and seizure: more

The appeal here comes from a conviction, after a jury trial, of predatory sexual assault against a child and course of sexual conduct against a child in the first degree. The defendant here was infected with a certain sexually transmitted disease (STD) that was proved at trial albeit without testimony. The issue becomes whether there is a confrontation clause issue.

Recently, the Supreme Court held that no Confrontation Clause violation occurred when the statements of a three year old child, who did not testify, were admitted into evidence against a defendant. The Court held that these statements by a child to a teacher were made to address an ongoing emergency: child abuse. Since Crawford v. Washington, Courts have struggled with what is barred by the Sixth Amendment’s Confrontation Clause. Criminal defense attorneys know that the issue is daunting and the Crawford decision has led to much confusion.

The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” Like any good rule, however, there are exceptions. In Ohio v. Clark, 135 S.CT. ___ (June 18, 2015), the Supreme Court of the United States reversed: holding that the introduction at trial of statements made by a three-year-old boy to his teachers identifying his mother’s boyfriend as the source of his injuries did not violate the Confrontation Clause, when the child did not testify at trial, because the statements were not made with the primary purpose of creating evidence for prosecution.

Later decisions would clarify what was and what was not testimonial. The Supreme Court made clear that “if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness.” In Bullcoming, a Driving While Intoxicated (“DWI”) prosecution, the Court evaluated whether a blood analysis was testimonial even though it was made in the regular course of DWI prosecutions. Although this occurs quite regularly in criminal trials, the Supreme Court held that “[b]usiness and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because— having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial.”  more

As my New York Criminal Procedure professor emphasized to the class, the discretion of intermediate appellate court is broad and such court can modify a sentence in its discretion – a decision that will evade the review of the Court of Appeals. For criminal appellate attorneys, this is significant because the relief one can request on appeal. The case discussed below is one that fits the mold: a defendant who left the jurisdiction of the Court and, after nearly two decades, can come back and appeal a sentence as unfair.

In People v. Kordish, the Defendant was a twenty-two year old guy with a drug habit. Kordish sold drugs, 21 grams of cocaine, to an undercover officer while he was on probation for a prior conviction (same offense). The defendant absconded, failing to appear in court on the scheduled trial date. In 1992, the Defendant was convicted in a nonjury trial and sentenced to an indeterminate term of prison, eight to sixteen years. The defendant had left and went to Florida. He was arrested (in Florida) in 2009 and incarcerated until 2012, when he was returned to New York. Once returned, the Court imposed the 1992 sentence.

“An intermediate appellate court has broad, plenary power to modify a sentence that is unduly harsh or severe under the circumstances, even though the sentence may be within the permissible statutory range” (People v Delgado, 80 NY2d 780, 783; see CPL 470.15[6][b]; People v Thompson, 60 NY2d 513, 519). Our sentencing review power “may be exercised, if the interest of justice warrants, without deference to the sentencing court” (People v Delgado, 80 NY2d at 783 [emphasis added]). In considering whether a sentence is unduly harsh or severe under the circumstances, we exercise our discretion giving consideration to, “among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation, and deterrence” (People v Farrar, 52 NY2d 302, 305; see People v Suitte, 90 AD2d 80, 83-84).

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The accused has the Constitutional Right to a Speedy Trial. Recently, the Supreme Court in Betterman declared the sole remedy for a speedy trial violation: dismissal. In New York State, the speedy trial right is codified in the New York Penal Law. New York State codifies that constitutional right to speedy trial and mandates the same and only remedy: dismissal.

Although a harsh remedy, New York Penal Law Section thirty sets forth certain criteria for determining when the clock starts to run and how the time is attributable to the People or the Defendant. Like the Supreme Court, The Court of Appeals recently took a case that affirms longstanding law in New York Stat: Consent to an adjournment by the Defense must be clear and unequivocal. Here the issue arises as to what occurs when the Court calendar, the People’s calendar and defense counsel’s calendar does not mesh: who is responsible for what period of time.

The Court of Appeals notes that, in this case, they are “asked to determine who is chargeable, for statutory speedy trial purposes, with each discrete time period within a pre-readiness adjournment when the People initially request an adjournment to a specific date, defense counsel is unavailable on that date and requests a later date, but the court is unavailable on the later date, resulting in an even longer adjournment.” Pp. 1-2. Issues of court congestion may have confused defendants and practitioners. Court congestion in New York State and New York City Criminal Courts have spawned long needed discussion (and potential legislation) addressing the speedy trial rule and its failure to address the People’s violations of citizens’ right to a speedy trial.

Like any good rule, there are exceptions. One such exception that is tackled here is what time should be attributable to which party when there are conflicting schedules. Defense can consent but such consent must be express. Such consent stops the speedy trial clock from running against the People’s time to answer and be ready for trial. Longstanding law is clear on the matter of defense consenting to later adjournments: People v Smith (82 NY2d 676 [1993]):

“Adjournments consented to by the defense must be clearly expressed to relieve the People of the responsibility for that portion of the delay. Defense counsel’s failure to object to the adjournment or failure to appear does not constitute consent. The adjournments at issue here were, in the first instance, precipitated by the People’s failure to be ready for trial. Other than stating that certain dates were inconvenient, defense counsel never formally consented to the adjournments and did not participate in setting the adjourned dates. Because the actual dates were set either by the court or the prosecution, no justification exists for excluding the additional adjournment time required to accommodate defense counsel’s schedule” Pp.3 (citing Smith, at 678 [internal citation omitted ]).

The Court of Appeals here, in Barden, spells it out clearly: “Smith states that counsel’s mere failure to object to an adjournment, or indication that a date requested by the People is inconvenient, is not a request or a clear expression of consent for purposes of calculating excludable time under CPL 30.30″ Pp. 3. Barden takes it one step further, however, making it clear that time allotted by the Court beyond the time requested by Defense counsel is chargable to the People: “Contrary to the People’s argument, counsel’s accommodation of the court’s schedule — merely by failing to express an objection to the alternate date proposed by the court after it indicated that the date suggested by counsel was not available — cannot, under CPL 30.30, be considered consent to the extension of the adjournment beyond March 28.” Pp. 4.  more