We reject the contention of defendant that Supreme Court erred in refusing to suppress two incriminating letters that the police found in a hotel room. Defendant had the burden of establishing that he had a legitimate expectation of privacy in the hotel room that was searched by the police (see People v Ramirez-Portoreal, 88 NY2d 99, 108), and he failed to meet that burden. Inasmuch as defendant failed to check out of the hotel by the required time, he "lost his [legitimate] expectation of privacy in the hotel room and its contents, and the [owner] of the hotel had the authority to consent to the search" by the police (People v D'Antuono, 306 AD2d 890, lv denied 100 NY2d 593, 641). That search was not rendered illegal by the fact that defendant's tenancy expired while defendant was detained after having been arrested.
Sunday, October 4, 2009
In People v Kobza (2009 NY Slip Op 06948 [4th Dept 10/02/09]) the Court held that the defendant's expectation in the privacy of his hotel room expired when he did not check out by check out time because he was in police custody:
In People v Kobza (2009 NY Slip Op 06948 [4th Dept 10/02/09]) the Court held that the defendant's expectation in the privacy of his hotel room expired when he did not check out by check out time because he was in police custody:
We reject the contention of defendant that Supreme Court erred in refusing to suppress two incriminating letters that the police found in a hotel room. Defendant had the burden of establishing that he had a legitimate expectation of privacy in the hotel room that was searched by the police (see People v Ramirez-Portoreal, 88 NY2d 99, 108), and he failed to meet that burden. Inasmuch as defendant failed to check out of the hotel by the required time, he "lost his [legitimate] expectation of privacy in the hotel room and its contents, and the [owner] of the hotel had the authority to consent to the search" by the police (People v D'Antuono, 306 AD2d 890, lv denied 100 NY2d 593, 641). That search was not rendered illegal by the fact that defendant's tenancy expired while defendant was detained after having been arrested.
Although counter intuitive, there now exists irrefutable evidence that people falsely confess to having committed serious crimes. Indeed in about a quarter of all wrongful convictions cleared by DNA evidence there had been a false confession (see, Innocence Project -Understand the Causes). Included in this group are cases in which the Fourth Department had affirmed the conviction despite a challenge to the voluntariness of the confession (See, e.g., People v Warney, 299 AD2d 956, 957, lv denied 99 NY2d 633 in which a man was wrongfully convicted and incarcerated for 10 years on the basis of a false confession (See). What's more studies have demonstrated that false confessions are induced by certain interrogation techniques. A useful listing of articles on this topic is available here.
One means to reduce the problem of jurors incorrectly assuming that people would not falsely confess to serious crimes would be to permit expert witnesses to explain the studies on the this topic. This would be similar to the rulings permitting experts to testify that the failure to complain of a rape is not unusual. In People v Taylor and Banks (75 NY2d 277 [1990]) experts have been permitted to testify about how rape trauma syndrome is a recently recognized psychological disorder that can cause some rape victims to appear calm and relaxed after their attacks and lead them to delay reporting their rapes. The Court explained that its ruling was intended as a legal ounterweight to jurors who have misinterpreted such symptoms as evidence that the victim consented to sexual intercourse.
Why is there perceived less of a need to inform jurors of the psychological aspects of interrogation techniques that have been shown to lead to a false confessions?
The Fourth Department apparently sees juror misconceptions over silence about rape as different than juor miscopceptions about false confessions. In People v Bean (2009 NY Slip Op 06947 [4th Dept 102/09]) the defendant contended that the court erred in precluding the testimony of his expert witness who, according to defendant, would have provided general testimony concerning police interrogation techniques and false confessions. Rejectiong this argument, the Fourth Department held that
The Court did not state whether under other circumstances it would find an abuse of discretion in excluding this testimony.
One means to reduce the problem of jurors incorrectly assuming that people would not falsely confess to serious crimes would be to permit expert witnesses to explain the studies on the this topic. This would be similar to the rulings permitting experts to testify that the failure to complain of a rape is not unusual. In People v Taylor and Banks (75 NY2d 277 [1990]) experts have been permitted to testify about how rape trauma syndrome is a recently recognized psychological disorder that can cause some rape victims to appear calm and relaxed after their attacks and lead them to delay reporting their rapes. The Court explained that its ruling was intended as a legal ounterweight to jurors who have misinterpreted such symptoms as evidence that the victim consented to sexual intercourse.
Why is there perceived less of a need to inform jurors of the psychological aspects of interrogation techniques that have been shown to lead to a false confessions?
The Fourth Department apparently sees juror misconceptions over silence about rape as different than juor miscopceptions about false confessions. In People v Bean (2009 NY Slip Op 06947 [4th Dept 102/09]) the defendant contended that the court erred in precluding the testimony of his expert witness who, according to defendant, would have provided general testimony concerning police interrogation techniques and false confessions. Rejectiong this argument, the Fourth Department held that
The court did not abuse its discretion in determining that the expert's testimony would not be relevant in view of the facts of this case (see generally People v Young, 7 NY3d 40, 44-45; People v Lee, 96 NY2d 157, 162).
The Court did not state whether under other circumstances it would find an abuse of discretion in excluding this testimony.
Although counter intuitive, there now exists irrefutable evidence that people falsely confess to having committed serious crimes. Indeed in about a quarter of all wrongful convictions cleared by DNA evidence there had been a false confession (see, Innocence Project -Understand the Causes). Included in this group are cases in which the Fourth Department had affirmed the conviction despite a challenge to the voluntariness of the confession (See, e.g., People v Warney, 299 AD2d 956, 957, lv denied 99 NY2d 633 in which a man was wrongfully convicted and incarcerated for 10 years on the basis of a false confession (See). What's more studies have demonstrated that false confessions are induced by certain interrogation techniques. A useful listing of articles on this topic is available here.
One means to reduce the problem of jurors incorrectly assuming that people would not falsely confess to serious crimes would be to permit expert witnesses to explain the studies on the this topic. This would be similar to the rulings permitting experts to testify that the failure to complain of a rape is not unusual. In People v Taylor and Banks (75 NY2d 277 [1990]) experts have been permitted to testify about how rape trauma syndrome is a recently recognized psychological disorder that can cause some rape victims to appear calm and relaxed after their attacks and lead them to delay reporting their rapes. The Court explained that its ruling was intended as a legal ounterweight to jurors who have misinterpreted such symptoms as evidence that the victim consented to sexual intercourse.
Why is there perceived less of a need to inform jurors of the psychological aspects of interrogation techniques that have been shown to lead to a false confessions?
The Fourth Department apparently sees juror misconceptions over silence about rape as different than juor miscopceptions about false confessions. In People v Bean (2009 NY Slip Op 06947 [4th Dept 102/09]) the defendant contended that the court erred in precluding the testimony of his expert witness who, according to defendant, would have provided general testimony concerning police interrogation techniques and false confessions. Rejectiong this argument, the Fourth Department held that
The Court did not state whether under other circumstances it would find an abuse of discretion in excluding this testimony.
One means to reduce the problem of jurors incorrectly assuming that people would not falsely confess to serious crimes would be to permit expert witnesses to explain the studies on the this topic. This would be similar to the rulings permitting experts to testify that the failure to complain of a rape is not unusual. In People v Taylor and Banks (75 NY2d 277 [1990]) experts have been permitted to testify about how rape trauma syndrome is a recently recognized psychological disorder that can cause some rape victims to appear calm and relaxed after their attacks and lead them to delay reporting their rapes. The Court explained that its ruling was intended as a legal ounterweight to jurors who have misinterpreted such symptoms as evidence that the victim consented to sexual intercourse.
Why is there perceived less of a need to inform jurors of the psychological aspects of interrogation techniques that have been shown to lead to a false confessions?
The Fourth Department apparently sees juror misconceptions over silence about rape as different than juor miscopceptions about false confessions. In People v Bean (2009 NY Slip Op 06947 [4th Dept 102/09]) the defendant contended that the court erred in precluding the testimony of his expert witness who, according to defendant, would have provided general testimony concerning police interrogation techniques and false confessions. Rejectiong this argument, the Fourth Department held that
The court did not abuse its discretion in determining that the expert's testimony would not be relevant in view of the facts of this case (see generally People v Young, 7 NY3d 40, 44-45; People v Lee, 96 NY2d 157, 162).
The Court did not state whether under other circumstances it would find an abuse of discretion in excluding this testimony.
The Fourth Department issued decisions on October 2, 2009. In three of the criminal appeals (People v Bean, 2009 NY Slip Op 06947 [4th Dept 10/2/09]; People v Laing, 2009 NY Slip Op 06906 [4th Dept 10/2/09]; People v Parks, 2009 NY Slip Op 06995 [4th Dept 10/2/09] the Court noted that the trial attorney had failed to renew the motion for a trial order of dismissal (TOD motion) as has been required, at least since the 2001 decision of the Court of Appeals in People v Hines,97 NY2d 56, 61, rearg denied 97 NY2d 678 (2001).
One might think that the failure to preserve for review the issue of sufficiency of the evidence when the evidence was insufficient would constitute ineffective assistance of counsel, since the consequence of the failure to comply with the preservation requirements set forth by the Court of Appeals eight years ago in Hines is that the defendant remains incarcerated for a crime not proved. The Appellate Division, Fourth Department does not agree. In Parks the Court rejected a claim that the failure to renew the TOD motion is ineffective, holding that
One wonders if Mr. Parks agrees that he received meaningful representation.
One might think that the failure to preserve for review the issue of sufficiency of the evidence when the evidence was insufficient would constitute ineffective assistance of counsel, since the consequence of the failure to comply with the preservation requirements set forth by the Court of Appeals eight years ago in Hines is that the defendant remains incarcerated for a crime not proved. The Appellate Division, Fourth Department does not agree. In Parks the Court rejected a claim that the failure to renew the TOD motion is ineffective, holding that
Contrary to defendant's further contention, defense counsel was not ineffective in failing to renew the motion for a trial order of dismissal (see People v Bassett, 55 AD3d 1434, 1438, lv denied 11 NY3d 922), nor was she ineffective in failing to make objections that "would have been unavailing" (People v Guerrero, 22 AD3d 266, 267, lv denied 5 NY3d 882). Viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of the representation, we conclude that defense counsel provided meaningful representation (see People v Baldi, 54 NY2d 137, 147).
One wonders if Mr. Parks agrees that he received meaningful representation.
The Fourth Department issued decisions on October 2, 2009. In three of the criminal appeals (People v Bean, 2009 NY Slip Op 06947 [4th Dept 10/2/09]; People v Laing, 2009 NY Slip Op 06906 [4th Dept 10/2/09]; People v Parks, 2009 NY Slip Op 06995 [4th Dept 10/2/09] the Court noted that the trial attorney had failed to renew the motion for a trial order of dismissal (TOD motion) as has been required, at least since the 2001 decision of the Court of Appeals in People v Hines,97 NY2d 56, 61, rearg denied 97 NY2d 678 (2001).
One might think that the failure to preserve for review the issue of sufficiency of the evidence when the evidence was insufficient would constitute ineffective assistance of counsel, since the consequence of the failure to comply with the preservation requirements set forth by the Court of Appeals eight years ago in Hines is that the defendant remains incarcerated for a crime not proved. The Appellate Division, Fourth Department does not agree. In Parks the Court rejected a claim that the failure to renew the TOD motion is ineffective, holding that
One wonders if Mr. Parks agrees that he received meaningful representation.
One might think that the failure to preserve for review the issue of sufficiency of the evidence when the evidence was insufficient would constitute ineffective assistance of counsel, since the consequence of the failure to comply with the preservation requirements set forth by the Court of Appeals eight years ago in Hines is that the defendant remains incarcerated for a crime not proved. The Appellate Division, Fourth Department does not agree. In Parks the Court rejected a claim that the failure to renew the TOD motion is ineffective, holding that
Contrary to defendant's further contention, defense counsel was not ineffective in failing to renew the motion for a trial order of dismissal (see People v Bassett, 55 AD3d 1434, 1438, lv denied 11 NY3d 922), nor was she ineffective in failing to make objections that "would have been unavailing" (People v Guerrero, 22 AD3d 266, 267, lv denied 5 NY3d 882). Viewing the evidence, the law, and the circumstances of this case, in totality and as of the time of the representation, we conclude that defense counsel provided meaningful representation (see People v Baldi, 54 NY2d 137, 147).
One wonders if Mr. Parks agrees that he received meaningful representation.
Thursday, September 24, 2009
In People v Kolupa (59 AD3d 1134 [4th Dept 2009])the Fourth Department split 3-2 on whether there was sufficient corroboration of unsworn testimony of a 7-year-old to support conviction for attempted rape, criminal sex act 1st degree and sexual abuse in the 1st degree. The purported corroboration was Mr. Kolupa’s statement that he had exposed himself to the boy - a statement that did not mention any touching or physical act.
The three judge majority held that this constituted sufficient corroboration. The dissenting justices disagreed, reasoning that the statement only corroborated lesser crimes and not the crimes charged. One of the dissenting justices granted leave to appeal to the Court of Appeals, which decided the case this week.
Who was right? Hard to tell, since the
People v Kolupa, __ NY3d __, 2009 NY Slip Op 06586 [September 22, 2009].
Would you want to be the attorney calling Mr. Kolupa (in a correctional facility) to explain this result? Or the trial attorney who caused this result by failing to make a proper motion? Or Mr. Kolupa?
Since failure to abide by the requirements of Hines is all too common a problem it is perhaps hopeful that in a concurring decision Judge Smith wrote that
The three judge majority held that this constituted sufficient corroboration. The dissenting justices disagreed, reasoning that the statement only corroborated lesser crimes and not the crimes charged. One of the dissenting justices granted leave to appeal to the Court of Appeals, which decided the case this week.
Who was right? Hard to tell, since the
Defendant failed to preserve his argument that the People introduced insufficient evidence to corroborate the child victim's testimony. At the close of the People's case, the trial court denied defendant's motion to dismiss and defendant proceeded to present his own evidence. He did not thereafter renew the motion to dismiss at the close of his proof or specifically argue that there was not sufficient corroboration of the victim's statements. As a result, this issue is not reviewable (see e.g. People v Lane, 7 NY3d 888, 889 [2006]; People v Payne, 3 NY3d 266, 273 [2004]; People v Hines, 97 NY2d 56, 61-62 [2001]).
People v Kolupa, __ NY3d __, 2009 NY Slip Op 06586 [September 22, 2009].
Would you want to be the attorney calling Mr. Kolupa (in a correctional facility) to explain this result? Or the trial attorney who caused this result by failing to make a proper motion? Or Mr. Kolupa?
Since failure to abide by the requirements of Hines is all too common a problem it is perhaps hopeful that in a concurring decision Judge Smith wrote that
Today's decision correctly applies People v Hines (97 NY2d 56, 61-62 [2001]). I have expressed my unhappiness with Hines before (People v Payne, 3 NY3d 266, 273 [2004] [R. S. Smith, J. concurring]), but this case, in which the Appellate Division did not mention preservation, defendant does not argue the issue, and the Appellate Division's decision on the merits seems clearly correct, is not the right one for further examination of the Hines rule.
Subscribe to:
Posts (Atom)
Posts
