Tag: New York Law Journal

You have the constitutional right against self-incrimination. Anyone who has ever heard of a television show probably has heard the television version of the Miranda Rights: You have the right to remain silent; you have the right to an attorney; things you say can be used against you; you can waive those rights; etc. Even with these rights, defendants talk. You can waive that right under certain circumstances. People who feel they have nothing to hide and did nothing wrong speak to the police. Bad idea:

Should you be confronted by the Police you have the right to remain silent (you must communicate that you are exercising that right) and the right to an attorney. In New York you have the indelible right to counsel and the privilege against self-incrimination.  Should you find yourself being questioned by the police, demand an attorney: Call the Law Offices of Cory H. Morris. Here, in People v. Clerevin, the Appellate Division of the Second Department found that the defendant’s Miranda rights were violated. The Defendant asserted he did not knowingly and voluntarily waive his Miranda rights because of mental deficiency.

Although more than fifty years old now, Miranda is still good law:

“[F]or a statement to be admissible, the People must prove a voluntary, knowing, and intelligent waiver of the privilege against self-incrimination” (People v Aveni, 100 AD3d 228, 236 [citations omitted]; see People v Rodney, 85 NY2d 289, 292; People v Williams, 62 NY2d 285, 288). “Whether a defendant knowingly and intelligently waived his or her rights to remain silent and to an attorney is determined upon an inquiry into the totality of the circumstances surrounding the interrogation” (People v Santos, 112 AD3d 757, 758 [internal quotation marks omitted]; see People v Williams, 62 NY2d at 288), including the defendant’s “age, experience, education, background, and intelligence, and . . . whether he [or she] has the capacity to understand the warnings given him [or her], the nature of his [or her] Fifth Amendment rights, and the consequences of waiving those rights” (Fare v Michael C., 442 US 707, 725). Where a “person of subnormal intelligence” is involved, “close scrutiny must be made of the circumstances of the asserted waiver” (People v Williams, 62 NY2d at 289).

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Defendant appealed from a conviction of criminal possession of a weapon in the second degree, criminal possession of marijuana in the third degree, aggravated unlicensed operation of a motor vehicle in the second degree, and speeding. The New York Law Journal reported that “While speaking to Campbell, Emil Garcia, a Westchester County police officer, smelled marijuana. According to court papers, Campbell told Garcia that he had smoked marijuana and that there was marijuana inside the car.” Just another case where the defendant, instead of speaking to the police, should have exercised (you have to tell the police this) his right to remain silent and  demand to speak to an attorney: do not hesitate to call the Law Offices of Cory H. Morris if you are stopped by the police, anytime..

Here, Defendant alleges that the statements between him and a co-defendant were improperly admitted into evidence above his objection. The statements were the conversation that the defendant had in the back seat of the police car, all recorded by the police camera(s). The Defendant challenged the statements (also introduced against the co-defendant).  more

The Prosecution failed to present legally sufficient evidence at trial – the trial involving sexual assault against a child. The Defendant here was a Rabbi and the child was one who was confused during testimony. The Court makes it decision not based upon the credibility of the witnesses but upon the prosecution’s failures. At the close of the case, the defense, as often happens, moved for a dismissal. Indeed,

At the conclusion of the people’s case or at the conclusion of all the evidence, the court may…issue a trial order of dismissal, dismissing any count of an indictment upon the ground that the trial evidence is not legally sufficient to establish the offense charged therein or any lesser included offense…. CPL §290.10(1)(a).

CPL §290.10 applies to jury and nonjury trials, alike, and permits a trial order of dismissal only when the evidence presented at trial is insufficient as a matter of law. See People v. Sabella, 35 NY2d 158 [1974]. Legally sufficient evidence means “competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commissions thereof….” CPL §70.10(1); emphasis added. If the prosecutor has established a prima facie case, the evidence is deemed legally sufficient, Sabella, at 167, and the case proceeds to deliberation by the finder of fact.

Here, “the People failed, as a matter of law, to present a prima facie case in that they were unable to present legally sufficient evidence to establish the date on which the alleged offense occurred. Predatory Sexual Assault Against A Child and Sexual Abuse in the First Degree require that the prosecutor prove among other elements the date and the place of the alleged incident.” Pp. 3.  more