New York Criminal Defense Lawyer Blog

In People v. Robert, [ slip Op 100350] the Appellate Division – 3rd Department stated that: “it is well settled that where a defendant’s plea is withdrawn, it is out of the case for all purposes and the People may not use the plea or the contents of the plea allocution on their direct case or for purposes of impeachment”.

In People v. Carthew [Slip Op 50879], the Appellate Division- 2nd Department affirmed the dismissal of an information charging the defendant with criminal contempt in the second degree because the factual portion of the information failed to allege that the defendant was served with a copy of the order of protection, that he was present in court when it was issued or that he signed the order of protection. The Court also noted that a certified copy of the order of protection was not attached to the information.

In People v. Christiansen [ Slip Op 50693], the Appellate Division-2nd Department, affirmed the dismissal an information charging the defendant with resisting arrest because the factual part of the information only named the offense for which the defendant was arrested instead of setting forth allegations sufficient to establish- if true - that the defendant’s arrest was lawful.

In People v. Stoneham [Slip Op 03860], the Appellate Divison-4th Department, held that a show up identification held in geographical and temporal proximity to a crime is not unduly suggestive even when the defendant is identified while sitting in the back of a police car in handcuffs.

In People v. Gause, [ Slip Op 100785] , the Appellate Division-3rd Department, held that an inmate was under sufficient added constraint of the type that required him to be given Miranda warnings prior to any custodial interrogation. The inmate had been removed from his cell, handcuffed, detained, directed to sit on a Boss chair and then escorted to a special housing unit under close guard to be striped frisked.

In People v. Judson [Slip Op 96902B], the Appellate Division-3rd Department, held that a lower court must hold a hearing when determining a defendant’s sex offender risk level classification if the defendant contests a factual assertion in the case summary.

Posted by George P. Conway | Permalink | Email This Post

Posted In: New York Criminal Decisions Of Interest

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Self defense is a justification defense in New York. PL §35.00 If a justification defense is raised by defense counsel, the defendant does not have the burden to prove at trial that their actions were justified.PL § 25.00 Instead, the prosecution has the burden of proving beyond a reasonable doubt that the defendant’s actions were not justified. PL §25.00

In New York, you can use physical force upon a person if you believe it necessary to defend yourself or another individual from what you reasonably believe to be the imminent use of physical force by that person. PL § 35.15 You can be the first to use physical force if you reasonably believe that physical force is about to be inflicted upon you or someone else. [CJI- Justification: Use of Physical Force in Defense of a Person] You need not wait until you are struck or wounded before using physical force to defend yourself or someone else so long as you reasonably believe that another person is about to use physical force upon you or someone else. [CJI- Justification: Use of Physical Force in Defense of a Person] It is irrelevant if you were or may have been mistaken in your beliefs so long as your beliefs were honestly held and were reasonable. [CJI- Justification: Use of Physical Force in Defense of a Person] It would not be considered self defense if you were the initial aggressor unless the other person continued the encounter by the use or threatened use of imminent physical force against you after you had withdrawn from the encounter and had effectively communicated such withdrawal to the other person. PL § 35.15(b)

You would not be justified in using physical force in response to an argument, name calling or the use of bad language absent any physical threats or acts. [CJI- Justification: Use of Physical Force in Defense of a Person] You would not be justified in using physical force if you provoked the other person’s conduct with the intent to cause physical injury to that person. You would also not be justified in using physical force to resist an authorized or unauthorized arrest by a police officer or peace officer. PL § 35.27

A person may not use deadly physical force to defend themselves unless he or she believes that the other person is using or is about to use deadly physical force or if he or she is perfectly able to safely retreat. PL 35.15(2)(a) But, a person does not have to resort to retreating if they are inside their home and are not the initial aggressor.PL 35.15(2)(a)(i) A person also does not have to retreat if he or she is a police or peace officer or is assisting a police offer or peace officer at that officer’s request. PL §35.15(2)(a)(ii) A person also does not need to retreat if they reasonably believe that the person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery. PL §35.15(2)(b) A person also does not need to retreat if he or she reasonably believes that the person is committing or attempting to commit a burglary inside a dwelling or occupied building that he or she occupies or controls or is licensed or privileged to be in and deadly force is necessary to prevent or terminate the burglary or attempted burglary. PL §35.15(a)(c) [Please also see: CJI-Justification: Use of Deadly Physical Force in Defense Of A Person]

Posted by George P. Conway | Permalink | Email This Post

Posted In: New York Criminal Defenses

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A New York criminal court judge must declare a mistrial and order a new trial upon a motion by the defense if an error or legal defect occurs in the proceedings during the trial that is prejudicial to the defendant or denies the defendant a fair trial. [CPL § 280.10(1)] A New York criminal court judge must also declare a mistrial and order a new trial at the request of the defendant if there is conduct inside or outside the courtroom that is prejudicial to the defendant or denies the defendant a fair trial. [CPL § 280.10(1)] If there are multiple criminal defendants in the case, the criminal court judge must grant a mistrial only for the defendant who made the motion for a mistrial and for the defendant’s who joined in the motion for a mistrial. [CPL § 280.10(1)] The trial must proceed forward with respect to any defendant who did not make the motion for a mistrial or did not join in the motion for a mistrial. [CPL § 280.10(1)]

A New York criminal court judge must grant a mistrial at the request of the people if the people’s case against the defendant suffers substantial and irreparable prejudice due to the gross misconduct of the defendant or another person acting on behalf of the defendant regardless of whether the misconduct occurs inside or outside the courtroom. [CPL § 280.10(2)] In a case involving multiple defendants, the trial will proceed for any defendant who the people’s case did not suffer substantial and irreparable prejudice due to the gross misconduct and who was not responsible in any way for the gross misconduct. [CPL § 280.10(2)]

If it is physically impossible to proceed with a criminal trial in compliance with the law, the criminal court judge must declare a mistrial and order a new trial upon a motion by either party or upon the court’s own motion. [CPL § 280.10(3)]

Posted by George P. Conway | Permalink | Email This Post

Posted In: New York Criminal Process

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