Category Archives: N.Y. Court of Appeals

Suazo: Where We Go From Here

Yesterday, the New York Court of Appeals held that, as a matter of federal constitutional law, a noncitizen has a right to a jury trial for a petty offense if he or she can show that the charged crime may result in deportation. The majority’s reasoning boils down to the following. A person has a right to a jury trial when he or she is facing a “serious crime,” which has mostly been measured by the potential length of the sentence; “seriousness” should also consider other types of consequences; and deportation or removal is one such type of serious consequence, thus requiring a jury trial on demand. In this post, I’ll analyze the Court’s decision and predict where we’re headed in this area.

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Failure to Timely File Criminal Leave Application Does Not Constitute Ineffective Assistance Under State Constitution

In People v. Grimes (Ct. App. 10/23/2018) (5-2), the Court of Appeals held that, under article I, section 6 of the New York State Constitution, a defendant is not entitled to a writ of error coram nobis to bypass the limitation set by the legislature in CPL 460.30 in which to file a criminal leave application. Judge Wilson authored a dissent, joined by Judge Rivera. Continue reading

Court of Appeals weighs in on definition of “serious injury”

What type of injury constitutes serious physical injury under New York’s Penal Law? This question of fact depends on the jury and, because of the legal sufficiency standard, Appellate Courts are hard-pressed to change decisions. In People v. Garland (Ct. App. 11/20/2018) (5-2), the defendant fired five shots at a crowd and hit a bystander in the leg. The medical records revealed that the bullet became stuck in the soft tissue near the victim’s femoral artery; the bullet was never removed from his leg because of the medical risks of doing so. Continue reading

Request to Proceed Pro Se Untimely If Made After Start of Jury Selection

When must a defendant invoke his or her right to proceed pro se in order for the request to be considered “timely”? In People v. Crespo (Ct. App. 10/16/2018) (4-3), the Court of Appeals held that a request to proceed pro se is timely if made “before the commencement of trial,” defined as before the start of jury selection. After the start of jury selection, the right to proceed pro se is “severely constricted,” but the trial court may grant such an application in its discretion. Judge Rivera authored a lengthy dissent, joined by Judges Fahey and Wilson. Continue reading

Sufficiency of Accusatory Instrument Charging Patronizing a Prostitute 3º

A few days ago, the Court of Appeals reversed the Appellate Term’s decision dismissing an accusatory instrument as jurisdictionally defective.  At issue was whether the term “manual stimulation” in the context of Patronizing a Prostitute 3º was sufficient.

At the Appellate Term, the defendant argued, “the [term] ‘manual stimulation’ he sought could refer to a ‘foot rub, therapeutic massage, chiropractic adjustment, personal training – even an energetic match of thumb wrestling’.”

I think I’ll let the Court of Appeals’ opinion on this issue speak for itself:

The factual allegations that defendant requested “manual stimulation” from a woman on a street corner, for a specific sum of money, at 2:25 a.m., supplied “defendant with sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy” (People v Dreyden, 15 NY3d 100, 103 [2010]). Defendant’s argument that “manual stimulation” could be indicative of nonsexual conduct ignores the inferences of sexual activity to be drawn from the factual context in which the statement was alleged to have been made—a late night solicitation of a physical personal service from an individual on a public street, in exchange for a sum of money. Any assertion that defendant was referring to a nonsexual activity “was a matter to be raised as an evidentiary defense not by insistence that this information was jurisdictionally defective” (see Casey, 95 NY2d at 360). The fact that the instrument used a clinical phrase for the sexual activity alleged does not render the instrument jurisdictionally defective.

(LC).