Judgment Day

Decisions from the NYS Appellate Division, Third Department (May 1, 2007)

People v. Charlotten

The defendant pleaded guilty to criminal contempt for violating an order of protection that was no longer in effect. Defendant brought a CPL 440.10 motion to vacate his plea, arguing ineffective assistance of counsel. The court held “as the temporary order of protection which defendant admitted to violating was a nullity, he pleaded guilty to conduct which did not constitute a crime. Counsel's failure to recognize the invalidity of the court order thus amounted to an error on a clear-cut and completely dispositive issue. Moreover, the defendant demonstrated at the hearing that he would not have pleaded guilty but for this error by counsel." The Superior court information was dismissed.

People v. Murphy

The defendant was convicted by a jury of second degree murder. After invoking his right to counsel at the beginning of a police interrogation, he was given a phone to obtain a lawyer. The police not only advised the defendant that the call would be recorded, but the phone had a notice to this effect as well. Defendant placed a call and spoke to his father and sister for 14 minutes. At trial, the prosecution played the entire recording, without redaction, which was replayed during jury deliberations upon request by the jury. The court found the defendant’s statements in the recording were admissible because he was on notice that they would be recorded. The recording, however, also contained repeated references to defendant's invocation of both his right against self-incrimination and his right to counsel. The court held “it is well settled that a defendant's invocation of those rights during custodial interrogation may not be used against him as part of the People's case-in-chief.” This error was compounded when the same information was elicited during the testimony of a police officer, and during defendant’s cross-examination when he was asked about his failure to come forward with an exculpatory version of events. Conviction was reversed and a new trial was ordered.

People v. Baker

The defendant was convicted by a jury of vehicular homicide and DUI. He moved to set aside the verdict, pursuant to CPL 330.30, on the ground that his BAC of .10 was admitted into evidence without a proper foundation. The court found the prosecution did not elicit testimony from its expert regarding the specific steps he took to ensure the reliability and accuracy of the testing equipment, or whether the test was properly performed. “General statements about what he typically does with a blood sample are insufficient in the absence of testimony that he actually took such measures with regard to this blood sample.” The court granted a new trial.

New Legislation

S6687: Amends the civil practice law and rules, in relation to enforceability of certain foreign judgments

A9818: A mends the penal law, in relation to including injuring persons sixty-five years or older as an assault in the second degree

A little over a week ago I wrote a post titled, “Connecticut looking to overhaul persistent offender law”, detailing Governor Jodi Rell’s proposal to overhaul Connecticut’s persistent felony offender law.

The Hartford Courant now reports Rell is considering vetoing the bill.

Rell said the state is facing fiscal troubles and she does not believe significant new spending is possible. The Republican governor said it's “very likely” she will have to veto the bill or just the sections that call for new spending. Rell has the authority to veto portions of a bill, in addition to the entire legislation.

I have said three words, over and over and over and over again: no new spending for next year, she said. We are facing financial hardships. We are looking at revenue declining each and every day.

I don’t really know much about Governor Rell, but this is typical political flip-flop. Tell the voters what they want to hear, deal with the logistics later. C’mon Jodi, this proposal is a must, regardless of cost. Just last week you got on your soapbox and stated the following:

Make no mistake: we will not simply stand by while unrepentant and incorrigible predators kill people, Rell, a Republican, said. These thugs need to be removed from the street — and from society — permanently.

What changed in one week’s time so that, all of the sudden, there’s no money? Perhaps her budget people—who had to have known the amount of funding available and the cost of the proposal—should have informed her there was a good chance this wasn’t going to happen.

Maybe I’m being a little insincere—I’m sure she had good intentions last week, and maybe was misled by her staff on how much money was available. Still, instances like this make people question whether anything that comes out of a politician’s mouth is worth listening to, before it’s actually signed into law.

Highlights from the article in The Providence Journal:

Over the strong objections of the attorney general and state police, a key House committee has approved a bill to forever remove thousands of crimes from the public record so convicted criminals can tell state licensing boards and prospective employers — with impunity — that they have never been convicted of a crime.

Current law allows the expungement of a single, nonviolent offense from the record of a first-time offender five years after he or she has completed a sentence for a misdemeanor, or 10 years after completing a sentence for a felony.

The bill that cleared House Judiciary on a unanimous vote on Thursday night goes farther and, in so doing, contradicts a recent Supreme Court ruling.

It would eliminate the waiting period — and the notion that expungement is limited to first offenders — in cases where the accused has pleaded guilty or no-contest to a crime and a judge has opted to give the offender a deferred sentence. In such cases, the bill would “automatically quash and destroy” all public records of such crimes as soon as the deferral period — which usually runs five years — has ended.

Updated on April 27, 2008 at 08:19AM by Blakely

This article titled “Rell Seeks To Streamline Persistent Offender Law” appears in the Hartford Courant,
"These thugs need to be removed from the street — and from society — permanently." and discusses Governor Jodi Rell’s proposal to overhaul Connecticut’s persistent felony offender law.

Rell wants to rewrite and strengthen the law in a fashion requested by prosecutors and Democrats after the abduction, rape and killing of a woman in New Britain during a home invasion on March 30.

"There's not much point in having a law that no one uses — especially when the law is intended to protect the public from the worst of the worst," Rell said Monday. "My proposal eliminates the current distinctions between 'persistent offender,' 'persistent serious offender' and 'persistent dangerous offender.'"

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