Last week, the Fourth Department released a number of decisions that are of interest:
- People v. Brown (4th Dept. 4/24/2009) - single error by defense counsel constituted ineffective assistance of counsel. In the defendant's sexual abuse trial, his attorney failed to object to the admission of the victim's medical record, which contained information about prior allegations of abuse. The court found that this single error was "so egregious and prejudicial" as to constitute ineffective assistance.
- People v. Hankerson (4th Dept. 4/24/2009) - purported appeal waiver was invalid. Prosecutor merely mentioned that the defendant had agreed to waive the right to appeal. There was no further discussion or colloquy.
- People v. Ziegler (4th Dept. 4/24/2009) - police had reasonable suspicion to pursue and search defendant and his companions since one of them reached towards his waistband. The suspects matched the description by an anonymous 911 caller of three individuals carrying guns. In addition, the court noted that it is common knowledge that a gun is routinely carried in one's waistband.
- People v. Morrice (4th Dept. 4/24/2009) - reversal for prosecutorial misconduct. The trial prosecutor, among other things, failed to correct a witness' statement that she was not getting anything for her testimony (in fact, she had received transactional immunity); elicited from a police officer the defendant's invocation of his right to counsel; questioned the defendant about his conversation with his attorney during a recess; questioned a defense witness about her arrest record; asked her about whether her boyfriend was incarcerated; and characterized the defendant as a liar.
- People v. Stein (4th Dept. 4/24/2009) (Stein, J.) - foster parent-child relationship is not a "professional relationship" for purposes of SORA risk level assessment.
- People v. Scott (4th Dept. 4/24/2009) - Rape in the First Degree is an inclusory, concurrent count of Predatory Sexual Assault Against a Child.
- People v. Ballman (4th Dept. 4/24/2009) (Pine, J.) - out-of-state convictions prior to 2006 cannot be used to elevate misdemeanor DWI to a felony.
(LC)
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