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Judge’s Refusal to Grant a One-Day Adjournment to Allow Defendant to Present a Witness (After the Judge Granted the People’s Request for a Missing-Witness Jury Instruction) Was Reversible Error

The First Department reversed defendant’s conviction because the judge refused to grant defendant a one-day adjournment to bring in a witness after granting the People’s request for a missing-witness jury instruction: Having granted the People’s request for the [missing witness] instruction, the court should have granted defendant a short adjournment. A missing witness issue “must […]

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Level Three Forcible Stop Not Justified, Convictions Reversed—Prior Arrest of One of the Defendants and the Fact that Both Defendants Were Running While Looking Back Over their Shoulders Was Not Enough to Justify the Forcible Stop

In a two separate full-fledged opinions by Justice Manzanet-Daniels, over dissents, the First Department reversed defendants’ convictions, finding that their motions to suppress should have been granted.  Defendants were stopped after the police observed them running at 4:40 am.  Both men, Thomas and Brown, were looking back over their shoulders as they ran.  Brown (but […]

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Religious Brochure Urging Confession (Given to Defendant by a Deputy Sheriff) Required Trial Court to Make Sure Defendant Understood His Right to Refrain from Testifying at Trial—Trial Court’s Colloquy with Defendant Deemed Sufficient

In a full-fledged opinion by Justice Peters affirming defendant’s conviction, the Third Department determined the trial judge had made an adequate inquiry to ensure that defendant understood his right to refrain from testifying at trial.  The inquiry was deemed necessary in this case because a deputy sheriff had given the defendant a religious brochure which […]

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Defendant Could Properly Subpoena Documents Which May Support a Motion to Dismiss the Indictment in the Interest of Justice/There Was Evidence of a Policy Not to Prosecute Native Americans for Tax Law Violations Relating to Cigarettes

In a case alleging (criminal) cigarette-related tax law violations, the Third Department affirmed Supreme Court’s denial of the state police’s and the tax department’s motions to quash subpoenas concerning a forbearance enforcement policy.  The defendant, who is Native American, alleged the tax department and the state police made a policy-decision not to prosecute Native Americans […]

In a Slip and Fall Case, the Flawed Constructive-Notice Jury Instruction Required Reversal of the Verdict (Plaintiff Had Won) and a New Trial on Liability

The First Department, over a dissent, reversed the verdict in plaintiff’s favor in a slip and fall case because of a flawed jury instruction and ordered a new trial on liability.  Plaintiff alleged she slipped and fell on ice on a subway platform.  The First Department determined that the jury instruction on constructive notice was […]

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Reversible Error to Allow Prosecutor to Question Defendant About His Post-Arrest Silence

The Second Department reversed defendant’s conviction because the prosecutor questioned him about his post-arrest silence: …[T]he Supreme Court erred when it permitted the prosecutor to question the defendant about his post-arrest silence. Generally, a defendant’s post-arrest silence cannot be used for impeachment purposes … . Further, ” an individual’s pretrial failure to speak when confronted […]

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Motion to Vacate a Conviction Can Be Based Upon a Freestanding Claim of Actual Innocence—All Reliable Evidence, Even If Previously Barred at Trial or After Prior Motions to Vacate, May Be Presented at the Hearing

In a comprehensive opinion by Justice Hinds-Radix, the Second Department determined that a CPL 440 motion to vacate a conviction can be based upon a “freestanding claim of actual innocence.”  The defendant, who had brought several unsuccessful 440 motions, was deemed to have presented sufficient evidence of actual innocence to justify a hearing, in which […]

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