X was the only defendant to take the stand...cont

April 23, 2014,


The court is satisfied that the court met its obligation to hear the "offer of proof". Defense counsel was twice given an opportunity to summarize the evidence and explain its relevance without restriction by the court. Indeed, after a brief recitation of the substance of the offer, counsel concluded his remarks and, on his own initiative, requested a ruling. The court's statement of its findings, though brief and general, was also adequate. The court might better have commented on the specific proffer and explained why the "interest of justice" exception was inapplicable under the circumstances of the case, but its statement adequately put defendants on notice of its reasoning and created a record for appeal. Any deficiencies in the procedure did not rise to the level of reversible error.

Defense counsel here proposed that the evidence of the victim's prior group sex with black males would show her motivation for testifying against criminal defendants but made no effort to explain how prior sexual conduct with other males would be probative of the complainant's motive to testify--a connection neither apparent nor logical on its face. In short, counsel gave no explanation of why the evidence was probative, and the Constitution does not compel a court to proceed to a fuller consideration of the evidence until the proponent demonstrates some basis for its admission. The constitutional standard is one of arbitrariness. Here, the court acted reasonably.

On this appeal, the defendants offer another theory of relevance- that the prohibited evidence was needed to counter a possible inference by the jury that no woman would voluntarily have sexual relations with three men she had met just hours before on the street. Though that theory was not expressly raised during the colloquy on the offer of proof or at any other time during trial, defendants point out that the prosecutor asked the jurors during summation to consider whether defendants' account of the night's events was "a little peculiar". Defendants claim that at that point the court should have reconsidered its earlier arrest ruling.

The defendants also contend the trial court erred in refusing to instruct the jury specifically on the mistake of fact defense and on intent as an element of first degree rape and sodomy. They assert that the jury could reasonably have found from the evidence adduced at trial that although the complainant had not consented to sexual relations, criminal defendants mistakenly believed that she had. Under those circumstances, they say, their mistaken belief negated the intent necessary for a finding of guilt on the various counts.

The Penal Law provides that a defendant is guilty of rape, first degree, or sodomy, first degree, when he or she engages in sexual intercourse or deviate sexual intercourse by forcible. The People must also establish the victim's lack of consent but lack of consent results from forcible compulsion. Though the statutes are silent on the subject, intent is implicitly an element of these crimes. The intent required is the intent to perform the prohibited act--i.e., the intent to forcibly compel another to engage in intercourse or sodomy.

The question is whether the court's charge, when viewed in its entirety, adequately conveyed to the jury that the defendants acted with the necessary culpable mens rea. The court's instructions on forcible compulsion were as follows the third and final element the People must prove that the lack of complainant's consent resulted from the use of forcible compulsion, that is, to compel by either use of physical force, or a threat, express or implied, which places a person in fear of immediate death or physical injury to herself.

The court finds that it is unnecessary to forcibly compel another to engage in sexual acts unless that person is an unwilling participant. Thus, the jury, by finding that defendants used forcible compulsion to coerce the victim to engage in sodomy and intercourse, necessarily found that defendants believed the victim did not consent to the sexual activity. The instructions given covered the defense theory and the court did not commit reversible error in declining to give additional instructions on mens rea or mistake of fact.

The court finds defendants' remaining contentions without merit.

Accordingly, in each case, the order of the Appellate Division should be affirmed.

New York City Penitentiary

April 23, 2014,


The two questions to which the witness claimed privilege were only incidental and collateral and, clearly, the error was not substantial enough to justify a reversal. Furthermore, any error which may have been committed was obviated by the fact that the witness did testify one week later. His subsequent testimony eliminated any unfavorable inferences which could have been drawn from his prior claim of privilege.

There are two additional claimed errors, among the many raised on this appeal, which require comment. It is contended that the trial court erred in instructing the jury with respect to the burden of proof and the failure of appellants to take the stand. At different times during the charge, the criminal court properly instructed the jury that the refusal or neglect of any defendant to testify does not create any presumption against him; that the burden of proof remains with the People and may never be shifted to a defendant; and that it is a criminal defendant's privilege and right to stand mute and not take the witness stand. The court further charged the portion thereof quoted in the dissenting memorandum. While we agree that it was not necessary to add anything to the plain language of the statute, we cannot agree with the dissenting members of the court that the additional words used in the charge tended to deprive appellants of the full protection of the statute. When considered in proper context, we are satisfied that no reversible error was thereby committed.

Finally, appellants further urge that the court erred in charging the jury with respect to corroboration of accomplice testimony. The dissenting Justices are of the view that reversible error was committed because of the court's failure to 'unequivocally add', as it had with respect to the defendants found to be accomplices as a matter of law, that the witnesses found to be accomplices as a matter of fact could not corroborate each other and that independent evidence other than the testimony of other accomplices is required for conviction. In view of the fact, however, that it clearly appears from the record that the necessary corroboration is present not only in the testimonial evidence of disinterested witnesses but also in the documentary evidence introduced at the trial, we are of the opinion that the error may be disregarded as one not affecting the substantial rights of appellants.

It is our view, however, that the interests of justice would best be served by reducing the sentences of appellants to an indefinite term in the New York City Penitentiary. Accordingly, the court held that the two judgments of the Supreme Court, Queens County, as to appellants respectively, rendered March 5, 1965, affirmed; and two judgments of said court rendered the same day, as to appellants modified on the facts and in the interests of justice, by reducing their sentences to an indefinite term in the New York City Penitentiary and, as so modified, affirmed.

Ventimiglia hearing

April 23, 2014,


During the trial, the defense counsel noted that he had just received information as to the nature of the uncharged crimes which the People intended to introduce during their direct examination of the defendant. The defendant objected to any evidence of uncharged crimes occurring after the defendant allegedly admitted his complicity in the instant offense to him in 1986, on the ground that any criminal conduct occurring after the defendant's alleged admission in 1986 was irrelevant to the defendant's state of mind when he allegedly made the admission. The court replied that its prior ruling was not limited "as to before or after" the defendant's admission to him. The defense counsel asked the court, "in light of your ruling, what is the limiting instruction? When are you going to give a limiting instruction?" The court replied, "Certainly it is not going to be immediately after the testimony. In all probability it will be during the final charge to the jury."

The issue in this case is whether court erred in convicting defendant of murder in the second degree (two counts), attempted robbery in the first degree (two counts), criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

The legal sufficiency of evidence is established if, "'after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt'". For the charge of depraved indifference murder, the evidence must show "recklessness plus aggravating circumstances". In this case, the victim, George Spencer, was standing by his car, confronting the witness, who was attempting to steal the car's radio. The defendant, who accompanied him engaged in a gun battle with while running down the street, thereby exposing bystanders to the risk of harm. In the course of the gun battle, the defendant shot the victim in the face, causing his death, and fled the scene. These facts indicate that the defendant acted with depraved indifference to human life in causing the victim’s death.

There was also legally sufficient evidence to support the defendant's conviction of felony murder predicated on the attempted robbery of the victim’s car radio. The defendant contends that the People's witness, who provided the only evidence that the defendant was taking part in the attempted robbery, was not credible. However, resolution of issues of credibility, as well as the weight to be accorded to the evidence presented, are primarily questions to be determined by the jury, which saw and heard the witnesses. Its determination is entitled to great weight on appeal and should not be disturbed unless clearly unsupported by the record.

Evidence of uncharged crimes is not admissible if offered only to raise an inference that a defendant is of a criminal disposition. While the trial court should have held a Ventimiglia hearing and issued a limiting instruction, the testimony of non-accomplice witnesses provided overwhelming corroboration of the testimony of the defendant's accomplice, and therefore, any error was harmless.

Accordingly, the court held that the judgment is affirmed. The sentence imposed was not excessive. The defendant's remaining contentions are without merit.

State of Massachusetts...cont

April 22, 2014,


In a case law, the Supreme Court concluded that the State of Massachusetts had denied the defendant his Sixth Amendment confrontation rights by permitting a certified laboratory report of the analysis of a substance seized from the criminal defendant to be offered into evidence without the necessity of presenting the analyst as a witness. Noting that "there is little reason to believe that confrontation will be useless in testing an analyst's honesty, proficiency, and methodology", the Supreme Court excluded from the reach of the business records rule the product of "regularly conducted business activity the purpose of which is the production of evidence for use at trial" as inherently testimonial. However, the Court also recognized that there exist "business and public records which 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".

In another case law, the Court of Appeals invoked a dictum that not everyone "whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case" to underscore its conclusion that "merely machine-generated graphs, charts and numerical data" produced without any "conclusions, interpretations or comparisons" involving "subjective analysis" are non-testimonial within the meaning of the case law. Under this formulation, the records at issue herein remain nontestimonial for purposes of the Confrontation Clause.
Concededly, police department personnel responsible for calibrating and maintaining breath test machines are not "independent of law enforcement," and the business records rule may not be employed to shield from scrutiny records "calculated for use essentially in the courts, not in the business". Further, while in New York, "law enforcement agencies constitute businesses for purposes of CPLR 4518a”, business records lose their exemption from the hearsay bar "if the regularly conducted business activity is the production of evidence for use at trial". The test is first whether the documents qualify as business records and then whether they are also non-testimonial in the jurisprudence, whatever the state law definition of business records and the specifics of the foundation rules necessary to admit such records may be. This is in the DUI case.

While the purpose of accurate breath-alcohol measuring machines is to produce evidence that may be used at trial, the calibration and maintenance documents in relation to the machines are not testimonial. Calibration and maintenance records are created "in recognition of their necessity in the event of litigation and constitute a part of the foundational predicate for the admission of BAC test evidence". However, such records do not result from structured police questioning, they are not created in response to any effort at gathering incriminating evidence against a particular accused, they reflect objective facts without discretionary aspect, they do not involve opinions or conclusions relevant to a particular investigation, and they do not constitute "a direct accusation of an essential element of any offense".

Defendant's argument that the blood alcohol test result was inadmissible because the presence of numerous persons moving between the observing police officer, seated 5 to 10 feet from defendant, prevented the officer from maintaining a "continuous observation" of defendant for the 15-minute period prior to the test, is also without merit. Proof of the requisite "continuous observation" is not a predicate condition to admit breathalyzer test results; rather, it "goes only to the weight to be afforded the test result, not its admissibility". Moreover, the observation requirement is not strictly construed."

Neither the statute, the regulations nor the exercise of reason call for [a] constant vigil", and defendant does not claim that during the 15-minute period prior to the test, he placed anything in his mouth or that any other event occurred that implicated the test's accuracy.
In fulfilling our responsibility to conduct an independent review of the weight of the evidence, the Court accorded great deference to the jury's opportunity to view the witnesses, hear the testimony and observe demeanor. "Weight of the evidence review requires a court first to determine whether an acquittal would not have been unreasonable. If so, the court must weigh conflicting testimony, review any rational inferences that may be drawn from the evidence and evaluate the strength of such conclusions.

Based on the weight of the credible evidence, the court then decides whether the was justified in finding the defendant guilty beyond a reasonable doubt". Upon our review of the record, the Court was satisfied that the verdict was not against the weight of the evidence.

CPL § 210.25...cont

April 22, 2014,

Defendant contends that the appropriate remedy to correct the misjoinder is dismissal of the entire indictment. He suggests that CPL § 210.25 defines as defective an indictment, or a count thereof, which does not substantially conform to the requirements of CPL article 200 and which, under the circumstances of this case, is not subject to amendment to correct the defect. In such case, it is argued, the misjoinder invalidates the entire indictment, not just a single count or group of counts. Under the facts of this case, the contention lacks merit.
There are relatively few reported decisions dealing with the issue of the proper or appropriate remedy for misjoinder of unrelated crimes. Should the entire indictment be dismissed or just the offending count or counts? In the alternative, should a severance be directed? The predecessor to CPL § 210.25 (former section 323 of the Code of Criminal Procedure) is instructive. Section 323, insofar as it is relevant to the issue here, permitted a defendant to demur to an indictment, "or any count thereof," when it appeared that more than one crime was charged in the indictment and there was a misjoinder of counts.

The Court of Appeals has interpreted the former statute in terms of the court's authority to dismiss one or more counts of an indictment where there has been a misjoinder. In Rossi, supra, defendant was charged with defrauding a "Blue Shield" insurance corporation by collecting from the corporation on nine separate claims, each for less than $100, each for the rendition of identical medical services to the insured person. The People, alleging that there were false and fraudulent representations, indicted defendant for 1 count of Grand Larceny in the First Degree, 9 counts of Petit Larceny and 9 counts of Filing a False Insurance Claim. The Grand Larceny count included all nine transactions, charging that the collection of all nine claims amounted to a single taking by false pretenses. Although the Court of Appeals in that case dealt only with the appealability of the order which had dismissed one count of the indictment, in doing so, it did recognize the trial court's power and ability under the statute to dismiss a count which had been improperly joined, in lieu of relief directed at the entire indictment. A demurrer to less than all of the counts was specifically provided for by Section 323 of the Code of Criminal Procedure, where the counts were unrelated and the acts or transactions were not connected with each other.

The fact that the defendant has demurred to the entire indictment does not limit the court to either allowing or disallowing the demurrer in its entirety, but it may be allowed to the extent necessary to obviate the harm to a criminal defendant intended to be prevented by section 278 of the code when it prohibited charging more than one crime in an indictment."

The current legislative scheme is in material respects the same as that in effect when the case, was decided. CPL § 210.20(1)(a) authorizes the bringing on of a motion to dismiss an indictment "or any count thereof," when the indictment or count is defective, within the terms contained in CPL § 210.25. The latter statute, derived from the former § 323, delineates as defective an indictment that does not substantially conform to the requirements in CPL article 200, but permits the court, in its discretion, to amend the indictment "where the defect or irregularity is of a kind that may be cured by amendment " (CPL 210.25[1].

To Be Cont...

New York City Penitentiary

April 22, 2014,

A Queens Grand Larceny Lawyer said that, after a jury trial, appellants were convicted of grand larceny in the first degree (two counts), conspiracy to commit grand larceny, forgery in the third degree, and conspiracy to commit forgery; and appellant was convicted of conspiracy to commit grand larceny, forgery in the third degree, and conspiracy to commit forgery. In addition, the jury also found the Forest Hills General Hospital guilty, but acquitted three other codefendants.

A Queens Criminal Lawyer said that, the theory of the prosecutor's case was that appellants, three of whom were officers and stockholders of the Forest Hills General Hospital and one of whom was its accountant, conspired to defraud and did defraud the Associated Hospital Service of New York (hereinafter referred to as 'Blue Cross') by misrepresenting the actual operating costs of the hospital. This scheme was accomplished by disguising dividend payments to the hospital's stockholders as salaries for services performed, through false entries in the hospital's books and records and by means of false financial statements filed with Blue Cross.

The issue in this case is whether appellants’ guilt was proven beyond reasonable doubt.
In the court’s opinion, the evidence of appellants' guilt was convincingly established beyond a reasonable doubt. There are, however, certain claimed errors presented by appellants which merit discussion.

From the record it appears that three of the People's witnesses claimed their privilege against self-incrimination. Two of them, upon the prosecutor's request, were immediately granted immunity pursuant to section 2447 of the former Penal Law and directed to testify, which they did. The third witness was excused after having been asked only two questions. No admonition was given to the jury that no inferences were to be drawn by that witness's refusal to testify. Thereafter, one week later, the witness was recalled to the stand and, upon being granted immunity, testified against appellants.

While we believe that the jury should have been instructed that no unfavorable inferences were to be drawn from the witness's refusal to testify, nevertheless, under the circumstances herein, it is our opinion that such failure did not constitute reversible error. Significantly, the prosecutor had only asked the witness two questions which were designed to elicit only background information from him, to wit: whether he was the business manager of the hospital and whether he had attended certain meetings, when the witness was excused. This was, therefore, not a case where the prosecutor intentionally asked numerous questions in an attempt to unduly prejudice appellants in the minds of the jury. Thus, it cannot be said that the "inferences from the witness' refusal to answer added critical weight to the prosecution's case and thus unfairly prejudiced the criminal defendant". Moreover, in one case the court made clear that reversible error is not 'invariably committed whenever a witness claims his privilege not to answer'. There is absent from this record the type of prosecutorial misconduct was found.


To Be Cont..

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Law enforcement officers should not be restrained...cont

April 21, 2014,


The court held that pressing the sides of the suitcase to expel air therefrom by which the odor of marijuana was detected was an 'exploratory investigation', an 'invasion or quest', a 'prying into hidden places for that which was concealed' --in short, a search violative of the Fourth Amendment since it was made without the authority of a criminal search warrant when there was ample time to obtain one, and was not incidental to defendant's subsequent arrest in the upstairs bar. However, finding that the proven pattern of marijuana couriers, all of which fitted defendant, constituted probable cause for Sergeant Butler to believe that the suitcase checked in by defendant contained marijuana, the court affirmed the judgment of conviction despite the Subsequent unlawful search of the suitcase, saying:

'The circumstances upon which Sergeant relied were within his knowledge Before the search was initiated, and were sufficient to justify a reasonable man in believing that the very bags which Sergeant searched did in fact contain marijuana.' There is nothing in that case to suggest that there was probable cause to arrest the defendant Before the unlawful search or that the court intended to hold that an unlawful search would nullify Prior existing probable cause, if such there were. In the said case, custom agents saw defendant, who was convicted of receiving and concealing smuggled watches, carrying packages into his apartment house. By means of an instrument sensitive to radiation, the agents detected the presence of radioactive material in defendant's apartment. Defendant was then observed taking packages to his car, driving to the Los Angeles airport and arranging for shipment of the packages to New York. There, after again obtaining a positive reaction with their instrument, the agents opened the packages and found a large quantity of watches with radium treated dials. The packages were then resealed and flown to New York where custom agents, by arrangement, maintained a constant surveillance of the packages until they were claimed three weeks later. There was no finding by the court that there was probable cause for an arrest prior to the opening of the packages. The only intimation in that regard is the statement in the opinion that the agents, after they had conducted a radiation test for the benefit of the airport employee in charge, told the airport employee that 'they suspected the packages contained watches'. This, of course, is not 'probable cause' to Believe. The facts fell short of establishing probable cause to believe that the packages contained smuggled watches. Thus viewed, it is obvious that the sole predicate for the holding of the court that the seized packages should have been suppressed was that 'all or substantially the entire evidence implicating appellant was secured by the government through exploitation of the information obtained by the illegal search.

The facts in this case fall within the fact pattern, rather than of for here the police had ample cause for believing, not merely suspecting, that the package contained contraband. To hold that if Detective Tobin in this case had observed the oozing marijuana and detected the marijuana odor and then had done nothing but sat and waited for the defendant to arrive and had then placed him under arrest, at the time seizing and searching the drug package, it would not be liable to suppression, but that because After he already had probable cause for arrest by reason of what he had observed, he then searched the package, his already existing cause for arrest vanished and his prior observations became evanescent, outrages common sense and would be extending constitutional protection beyond all intended boundaries. As Justice once said, 'You cannot carry a constitution out with mathematical nicety to logical extremes.' I, therefore, hold that when Detective at 5 o'clock in the morning saw the grains of marijuana oozing out of the package and smelled the odor of that marijuana, he Then had probable cause to arrest whoever would call for that package; that while his opening of the package constituted an unlawful search, that unlawful search did not nullify or vitiate the antecedent probable cause; and that, therefore, the arrest of criminal defendant some ten hours later was supported by the probable cause which Preceded the unlawful search. Consequently, it constituted a lawful arrest and the seizure of the package contemporaneously therewith was a lawful seizure.

The Court held that the motion to suppress is denied.

Consequently, the court ordered to deny the motion of the offender

April 21, 2014,

The appeal then brings up for review and the denial of the offender's motion to dismiss the indictment due to the destruction of potentially exculpatory material.

Moreover, the criminal offender also moved to dismiss the indictment on the ground that the police had destroyed the material by discarding the photographs taken by the restaurant's surveillance camera.

In support of the offender’s argument, he pointed out that a face or part of a face allegedly had been visible in the photographs, and that the original police report indicated the robber's height to be 6'2, while he is 5'3. Consequently, the court ordered to deny the motion of the offender.

Afterward, the case proceeded to trial. The detective testified that the surveillance photographs had been blurred and were of poor quality, although he admitted that a profile of one of the robbers had been visible. At the hearing, the detective testified that he had discarded the photographs because they appeared to be of no value and he did not believe that a person's height could be ascertained from the photographs.

In contrast, the restaurant manager, who had also seen the surveillance photographs, testified that the images on them were clear, and that the heights of the robbers could be seen relative to the heights of the cashiers. She further testified that at least one of the photographs showed part of the face of the robber who wore the gray sweatshirt and carried the gun, the robber identified as the offender. Even if one of the two cashiers also testified, she was not able to make the identification, and only the restaurant manager's identification of the offender connected him to the robbery.

Based on records, the destruction of the surveillance photographs by the police which constituted potential the material requires reversal of the conviction and dismissal of the indictment.

The court stated that it is clear that the police misconduct in destroying the surveillance photographs violated the requirements.

Sources revealed that in determining whether the prosecution should be sanctioned for the destruction of the potential material, the court must consider the degree of negligence or bad faith on the part of the law enforcement officials and the importance of the evidence lost, and the evidence of guilt presented at trial.

Finally, the court avers that the destroyed evidence was relevant on the sole critical issue in the one-witness identification case, namely, the identification of the robber. Other than the identification testimony of the restaurant manager, virtually nothing connects the offender to the crime. For the said reason, it can hardly be said that the evidence against the offender was overwhelming.

Addressing the issue of an appropriate sanction, while the criminal court is aware that the drastic remedy of dismissal should not be invoked where less severe measures can correct the harm done by the loss of evidence, the court is compelled to conclude, that in the case, the only appropriate remedy is the reversal of the conviction and dismissal of the indictment, as the offender has been deprived of material with great potential value to his defense, and there is no other remedy available.

State of Massachusetts

April 20, 2014,

In this DWAI case, defendant was convicted of driving while intoxicated per se and speeding. At the trial, a Nassau County police officer testified that he was trained to estimate the speed of a moving vehicle and that, in March 2007 at 4:58 A.M., he observed defendant traveling at about 90 miles per hour on the Long Island Expressway. The officer confirmed that estimate by a laser device and by his speedometer during the subsequent pursuit. The officer stopped defendant and noted that defendant exhibited several indicia of intoxication. Defendant admitted having had "one drink." The officer administered a series of field sobriety tests, all of which defendant failed.

A Nassau County DWI lawyer said that the officer arrested defendant at 5:23 A.M. and transported defendant to the Nassau County Police Department's Central Testing Unit, where defendant again failed a series of sobriety tests and consented to a chemical test of the alcohol content of his blood. The test, conducted at 7:24 A.M. by an Intoxilyzer 5000 EN breath test instrument, produced a reading of .11 per centum by weight.

Defendant sought to introduce expert testimony as to the range of individual variation within the general population from the 2,100:1 "conversion" or "partition" ratio used in the Intoxilyzer 5000 EN to derive the concentration of alcohol in a person's blood from the quantity of alcohol vapor detected in a breath sample.

Defendant did not challenge the instrument's reliability, but sought to lay the foundation for a jury argument that defendant's individual ratio might differ so significantly from the mean as to diminish the evidentiary weight to be accorded the test results. The District Court precluded the evidence, apparently on relevancy grounds.

The scientific accuracy of "breath testing instruments" approved by the New York State Department of Health is "no longer open to question", and the Intoxilyzer 5000 EN is one of those approved instruments. A consequence of the general acceptance in the scientific community of the reliability of the results of blood alcohol testing by such instruments is that it is no longer necessary to establish, through foundational evidence, the reliability of the test results by means of expert testimony. The presumption of reliability extends to the scientific premises underlying the operation of breath test instruments, including the validity of the partition or conversion ratio.

Although the fact, if not the magnitude, of conversion ratio variability is well established, as a general rule, evidence of such variability may not be introduced to challenge the reliability of instruments that determine blood alcohol levels from the analysis of breath samples. In the District Court, defense counsel, conceding that "[n]obody knows what defendant's ratio was," argued, in effect, that the mere theoretical possibility that defendant's personal conversion ratio so differed from the ratio employed by the Intoxilyzer 5000 EN as to meaningfully diminish the weight to be accorded the test results. Therefore, counsel argued, evidence of conversion ratio variability within the population should be admissible without proof of criminal defendant's own conversion ratio.

The Court disagreed.

Absent proof by defendant that his personal conversion ratio differs so significantly from the mean as to materially undermine the weight to be given the test result, it cannot be said that the test so erroneously recorded his blood alcohol content as to render his conviction wrongful. "Evidence, although technically relevant, will be excluded if it is too slight, remote, or conjectural to have a legitimate influence in determining the fact at issue". Thus, the District Court did not abuse its discretion in rejecting defendant's offer of proof which, while involving matters not theoretically irrelevant, was not shown to have probative value above the "slight, remote, or conjectural" and amounted to little more than an invitation to speculate.

To Be Cont....

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X was the only defendant to take the stand...cont

April 20, 2014,

The exceptions also recognize that any law circumscribing the ability of the accused to defend against criminal charges remains subject to limitation by constitutional guarantees of due process and the right to confront the prosecution's witnesses under U.S. Const. 5th, 6th Amends. and Pointer v Texas, Washington v Texas and Tanford v Bocchino. The Supreme Court, in affirming that a defendant's right to present his own witnesses to establish a defense is a fundamental element of due process of law, has held in a variety of circumstances that certain State rules restricting evidence were unconstitutional either on their face or as applied.

In Washington v. Texas, for example, a State law prohibiting a co-participant in crime from testifying for the defense was declared unconstitutional. The Supreme Court found that a trial court's mechanistic application of the hearsay rule to keep out testimony helpful to the accused violated the Constitution.

It is settled that an accused's right to cross-examine witnesses and present a criminal defense is not absolute nor can the Sixth Amendment be read to "confer the right to present testimony free from the legitimate demands of the adversarial system as ruled in United States v Nobles and Michigan v Lucas. Evidentiary restrictions are to be voided only if they are "arbitrary or disproportionate to the purposes they are designed to serve" as held in Rock v. Arkansas and Michigan v. Lucas. A restriction is most likely to be found arbitrary when it is a per se rule, as in Rock, or when it is applied by a court without due consideration of the individualized circumstances and interests present in the matter before it, as in Chambers.

Insofar as rape shield laws are concerned, the Supreme Court has recognized that they express the States' legitimate interest in giving rape victims heightened protection against surprise, harassment, and unnecessary invasions of privacy.

Considering defendants' statutory claim first, CPL 60.42(5) requires only that the trial court hear an offer of proof and provide a statement of its findings of fact essential to its determination. Though the statute by its terms requires an offer of proof only when a court decides to grant a defense motion and admit the evidence, it does not follow that the statute was intended solely for the benefit of victims. The section is designed to protect the rights and interests of defendants as well as the interests of victims. The requirement of a factual statement is properly viewed as ensuring both due considerations of sex defense motions and an adequate record for appeal while at the same time assuring that the victim's interests are properly considered. Its procedural dictates play a critical role whether an offer of proof is being denied or accepted.

In the case at bar, both procedural requirements of the statute were met by the trial court. "Offer of proof" summarizes the substance or content of the evidence. The defense counsel was allowed to describe the proposed evidence and to state to the court why he believed it relevant--specifically, that evidence of prior group sex with blacks would be probative of the complainant's motivation for testifying. In the People's response to the request, an additional theory was suggested: a pattern of similar sexual behavior might be probative of consent. Defense counsel did not endorse the People's theory but took the opportunity to explain his proffer further. After doing so, he asked the court to rule. The court rejected the offer of proof and gave an explanation for its ruling. A drug was not involved.

To Be cont...

Consequently, the court ordered to deny the motion of the offender

April 20, 2014,

At approximately 3:00 P.M., three men wearing hooded sweatshirts entered a restaurant. The men waited by the door for a few minutes until all of the customers left. One of the men then approached the register and placed an order. After receiving the order, the three men went into the bathroom. A few moments later, two of the men returned to the register, and at that time, according to a cashier, the taller of the two men, who was wearing a gray hooded sweatshirt, pulled out a gun and instructed her to give them all of her money.

The cashier testified at the trial that she was approximately 5'6 1/2 tall and that the man was much taller than she was, probably about 6'2. She further stated that she did not saw the man’s face, however, because the robbers had instructed her not to look at them. The robbers also took money from another cashier.

While the holdup was in progress, the restaurant manager came downstairs from the second floor of the store and entered the area behind the register. From a distance of about six to nine feet, the manager was able to observe, for about five or ten seconds, the face of the man wearing the gray sweatshirt and holding the gun. The hood of his sweatshirt was drawn tightly around his head so that his hair and ears were not visible, and the shape of his head was obscured. But, the manager asserted that he saw their eyes, nose and mouth. At that distance, the manager, who testified that she was 5'6 or 5'7 tall, stated that she made eye contact with the robber with the gun. She later estimated his height at 5'7 or 5'8, and further described him as having a small goatee.

The original police report, however, indicated that the suspect was approximately 6'2.
At the time of the robbery, the restaurant was equipped with a Polaroid-type camera, which was mounted about five feet above the counter. It was triggered by the removal of a bill from any of the cash registers, and would pivot so that it would photograph all of the registers. During the instant robbery, the camera took approximately ten photographs, all of which were handed over to the police on the day of the crime.

Over a month after the robbery, the offender and several other individuals were arrested with the crime of criminal possession of a weapon charges. The arrest report states that the offender's height is 5'5. Subsequently, the offender and the others were identified as persons involved in a series of robberies in the county.

A detective obtained photographs of the offender and the others who were arrested with him. Afterward, the said photographs were exhibited to the restaurant manager in a batch of approximately thirty photos. She identified the offender's photograph as that of the man in the gray sweatshirt who displayed the gun, but could make no other identification. The offender was thereafter arrested for the robbery.

Subsequently, the offender demanded any evidence or information that might be considered a material, that is, material that might tend to be exculpatory. The man’s attorney was not then informed of the existence of the surveillance photographs. The fact that the surveillance camera had taken photographs of the robbery was not discovered until the hearing. At that time, it was also learned that the detective had discarded the photographs. In explanation of his actions, the detective stated that he believed that the photographs showed nothing that would be of value in an identification procedure.

At the conclusion of the hearing, the court ruled only on the identification issue. The court then suppressed the restaurant manager's photographic identification of the offender, principally on the ground that the array shown to her had not been properly preserved, but further found that an independent source existed for her in-court identification.
The offender also filed an appeal, as limited by his brief, from the decision of the Supreme Court convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence.


To Be Cont..

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Ventimiglia hearing

April 19, 2014,

A Queens Gun Crime Lawyer said that, this is an appeal by the defendant from a judgment of the Supreme Court, Queens County, rendered July 15, 1999, as amended December 2, 1999, convicting him of murder in the second degree (two counts), attempted robbery in the first degree (two counts), criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.

A Queens Criminal Lawyer said that, on November 30, 1981, the victim was shot and killed after he confronted a thief in the vicinity of his car. The witness an admitted car thief, testified at the trial that he drove the defendant to the scene, so the defendant could go to a marijuana store referred to as "Star Wars." He saw the victim's car up the block, and decided to steal its radio. The victim interrupted him, and a struggle ensued. The victim reached for his ankle, to pull a gun out of his ankle holster. The defendant, whom he testified was not a car thief and not a participant in his attempt to steal the car radio, approached with a gun. At that point, he fled, and heard gunshots. The victim shot the defendant in the foot, and the defendant shot the victim in the face. The victim died from his injuries. The bullet that killed the victim came from either a.38 caliber or nine-millimeter automatic weapon.

A Queens Criminal Possession of Weapon Lawyer said that, five years later, in 1986, the defendant allegedly described his participation in the crime to his childhood friend and long-time criminal associate. He became a government informant after he was sentenced to 50 years imprisonment for an unrelated federal conviction. According to Blake, the defendant claimed that he was stealing the victim's car in order to drive to Long Island to commit a burglary. When the victim approached, the defendant walked away. The victim followed the defendant, firing gunshots. The defendant returned the fire. These sharply divergent versions of the crime were presented to the jury at the trial. The witness version of the events was supported by three other witnesses who testified that the man who shot the victim was standing outside of and away from the victim's car. None of these witnesses were able to identify the defendant as the man who shot the victim.

A Queens Gun Crime Lawyer said that, the jury apparently credited the version of the crime set forth in his testimony, since, by its verdict, it necessarily found, contrary to the witness testimony, that the defendant was a participant in the crimes of attempted robbery in the first degree, and felony murder. At the trial, extensive evidence of uncharged crimes was erroneously admitted. Prior to the trial, the People moved for an order permitting them to introduce evidence of uncharged crimes to establish that there was a relationship of trust between the defendant and his witnesses. The court, in a written decision, granted the application without a hearing, on the ground that the evidence "will explain to the jury the depth of the relationship between the defendant and the witnesses, their mutual trust for each other and why the defendant believed he could confide in each of them." Prior to jury selection, the defense counsel asked the court for a Ventimiglia hearing, so the court could rule on "each one of the criminal allegations."

To be Cont...

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