Tag: Criminal Defense Attorney

0 comments

New York Criminal Defense Attorneys know that the criminal justice system is coercive, often resulting in people who are afraid of the consequences or stuck in jail to plead guilty to things that may not have actually occurred. Plea bargains must be entered into voluntarily. A plea cannot be coerced from a defendant by improper means, whether physically coerced or coerced by the threat of punishment for taking the case to trial and obtaining a guilty verdict on a lesser charge. Not a television drama, criminal defense attorneys advise their clients of their options, weighing the evidence and the people’s ability to prove their case beyond a reasonable doubt. While being found guilty of a lesser included charge may result in jail time (or an alternative sentence), a judge cannot comment that the defendant will have a certain fixed sentence after jury trial as opposed to a range of sentence for a crime of which he or she has not been convicted.

While we do not know the facts and circumstances of this case, the Fourth Department allowed a defendant to withdraw his guilty plea:

During discussions over the plea offer, the court addressed the possibility of a jury convicting defendant of the lesser included offense of manslaughter in the first degree by stating: “[Y]ou wouldn’t get any better than 25 [years] if you get a manslaughter. That’s a big ‘if.'”…”[T]he court’s statements do not amount to a description of the range of potential sentences but, rather, they constitute impermissible coercion, rendering the plea involuntary and requiring its vacatur” (People v. Kelley, 114 AD3d 1229, 1230 [internal quotation marks omitted]; see People v. Boyde, 122 AD3d 1302, 1302-1303).

Do not be forced to enter a guilty plea. Contact a criminal defense attorney and evaluate your options. Call the Law Offices of Cory H. Morris: 631-450-2515.

People v. Williams, KA 14-00717, NYLJ 1202772393196, at *1 (App. Div., 4th, Decided November 10, 2016)

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).

 more

It sounds like a bad joke: A cop rolls up to a citizen and says “what’s up, guys.” The citizen does not respond. He puts his head down and starts walking faster. The reason for the stop? He was staring.  The New York Law Journal reported that “[a]n appeals court set aside a man’s conviction for weapons possession after concluding that his arrest was premised on nothing more than the defendant looking in the direction of police as he walked in a ‘higher-crime’ area of Buffalo.” Was this a friendly greeting or a police inquiry?

The Court finds that the police’s action required a reason. More than simply a police officer engaging with a citizen, the officer engaged in a level of intrusion as discussed by De Bour and its progeny. Indeed, [the officers engaged in a level one approach and request for information when they concluded the traffic stop after observing defendant and the other men walking down the sidewalk, crossed the street in their marked patrol vehicle in order to drive alongside the men, and asked them the basic, nonthreatening question, “what’s up, guys?” (see People v. Howard, 129 AD3d 1654, 1654; People v. Johnston, 103 AD3d 1202, 1203, lv denied 21 NY3d 912; People v. Carr, 103 AD3d 1194, 1194). Contrary to the People’s contention, it cannot be said, under such circumstances, that the officers’ approach and inquiry was merely a “friendly greeting” that did not constitute a request for information (cf. People v. Thornton, 238 AD2d 33, 35)] Pp. 2 (internal citations preserved). more