Philip J. Smallman, Esq.

Transcription

1 Philip J. Smallman, Esq. 32 Court Street Suite 1702 Brooklyn, New York Phone: Fax: Work History 1994 to Present, Private Law Practice, numerous Supreme Court Trials of Class A Felony Cases, Article 81 Proceedings, Supreme Court Trial Matters, Family Court and Surrogates Court, General Civil Matters; Law Secretary to Acting Supreme Court Justice Seymour Gerschwer, Kings County; Private Law Practice; Assistant District Attorney, Kings County Special Assistant Attorney General, Office of the Special State Prosecutor for Corruption in the New York City Criminal Justice System Assistant District Attorney, Queens County PRO BONO EXPERIENCE I devoted significant parts of four years to conduct an investigation which led to overturning a wrongful conviction and freeing an innocent man who had served nine years of an eighteen year jail sentence Education J.D. Pace University Law School, 1982 B.A. Fordham University, 1977 Guest Lecturer, Pace Law School and Brooklyn Law School Volunteer Associate at The Second Look Program of Brooklyn Law School

2 Philip J. Smallman 32 Court Street Suite 1702 Brooklyn, New York Phone: Fax: BIOGRAPHY Phil Smallman was born, raised and is a lifelong Brooklyn resident. He is married, an the proud father of three and a grandfather. He graduated from Xaverian High School, Fordham University and Pace University School of Law, (J.D. 1982). He has been admitted to the practice of law in the Courts of New York State as well as the Southern and eastern Districts of the Federal Courts. His employment history includes staff, operational and management duties at the New York Daily News. Phil Smallman s law enforcement work history includes service as a Deputy U.S. Marshal, (S.D.N.Y.) and Assistant District Attorney in both Queens and Kings Counties, and a Special Assistant Attorney General for the Office of the Special Prosecutor for Corruption. In the private practice of law, Phil has tried in excess of fifty Class A felony matters many of which were also newsworthy. In the course of his practice, he conducted an investigation of the conviction of Gerald Harris, a young man who served nearly a decade for a crime he did not commit. After nearly four years of work, Phil s motion to vacate his wrongful conviction was joined by the Queens District Attorney and Mr. Harris was freed. Phil volunteers his time to coach 78 th Precinct basketball and baseball and has served on their Executive Board. He coached AYSO youth soccer and started and coached the first sports team in the history of Dominical Academy High School to two consecutive championships. He also served as President of the Genesis School Parents Advisory Committee as a member of the Father s guild of Xavier High School. Phil is a member of Bar Associations and fraternal organizations.

3 NEW YORK CRIMINAL PROCEDURE Hon. Barry Kamins 1. Arrests a) Arrests without a Warrant - CPL b) Desk Appearance Tickets - CPL 150 c) Arrest Warrant - CPL 120 i) Payton v. New York, 445 US 573 (1980) 2. Commencement of the Criminal Action a) Prosecutor s Information - CPL 1.20 b) Misdemeanor Complaint - CPL 1.20 c) Information - CPL 1.20 d) Simplified Traffic Information - CPL 1.20 e) Felony Complaint - CPL 1.20 People v. Alejandro, 70 NY2d 133 (1987) 3. Arraignment a) Bail - CPL Articles 510, 520 and 530 b) Orders of Protection - CPL c) Notices 1

4 CPL CPL People v. O Doherty, 70 NY2d 479 (1987) d) Request for Article 730 examination 4. Preliminary Examination - CPL People v. Hodge, 53 NY2d 313 (1981) 5. Release of Defendant in Custody CPL , ) Grand Jury - CPL Article 190 a) Composition and Quorum People v. Collier, 72 NY2d 298 b) Evidence c) Powers of Grand Jury People v. Lancaster, 69 NY2d 20 (1986) 1) Standard of Proof People v. Lopez, 79 NY2d 402 d) Transactional Immunity Matter of Rush v. Mordue, 68 NY2d 348 (1986) 1) Waiver e) Defendant s Right to Testify People v. Evans, 79 NY2d 407 (1992) f) Secrecy 2

5 Matter of DA of Suffolk Co., 58 NY2d 436 (1985) g) Prosecutor s Duty to Present Exculpatory Evidence People v. Hansen, 99 NY2d 339 (2003) h) Prosecutor s Role as Advisor People v. DeFabio, 79 NY2d 836 (1992) i) Order of Witnesses Morgenthau v. Altman, 58 NY2d 1057 (1983) j) Quorum People v. Collier, 72 NY2d 298 k) Waiver of Indictment - CPL 195 People v. Boston, 75 NY2d 585 (1990) l) Sandoval in the Grand Jury People v. Smith, 87 NY2d 715 (1996) m) Resubmission to the Grand Jury People v. Aarons, 2 NY3d 547 (2004) 7) Indictments - CPL 200, 210, 240 a) Amendments - People v. Taylor, 43 AD2d 519 b) Superceding - People v. Maye, 79 NY2d 104 c) Specificity - People v. Keindl, 68 NY2d 410 (1986) 8) Discovery a) Constitutional - Brady v. Maryland (1963) 3

6 b) Statutory - CPL c) Public Policy - People v. Rosario, 9 NY2d 286 (1961) 9) Guilty Pleas a) Voluntariness - People v. Selikoff, 35 NY2d 227 (1974) b) Serrano Pleas - People v. Serrano, 15 NY2d 304 (1965) c) Immigration Consequences Padilla v. Kentucky, US, 130 S Ct 1473 (2010) 10) Pre-Trial Hearings A) Suppression of Physical Evidence (Mapp Hearing) Mapp v. Ohio, 367 US 643 (1961) 1) Motion to Suppress a) Motion must be made as part of omnibus motion within 45 days of Criminal Court or Superior Court arraignment. (Court can also grant extension for good cause ). b) Motion must state a legal basis for suppression (CPL (1)). Suppression can be based upon an unlawful search and seizure under the federal or state constitutions. c) Legal basis for suppression must be supported by sworn allegations of fact (CPL (1). 1) Factual sufficiency is evaluated under the three-pronged test of People v. Mendoza, 82 NY2d 415 (1993). 4

7 a) The defendant must allege facts rather than conclusions. b) The defendant s allegations must be read in context with the prosecutor s theory of the case. c) The court must consider the defendant s access to information necessary to support suppression. 2) The facts must establish both a substantive theory of suppression and the defendant s standing to challenge the unlawful conduct. 3) A suppression court can summarily deny a motion to suppress when the defendant uses boilerplate or conclusory language (People v. Vega, 210 AD2d 41 (1 st Dept. 1994). d) Prosecution is not required to file a written answer to the motion (CPL (I); however the court can then determine the motion on the undisputed assertions of the defense. 1) If the prosecution files a written response, the failure to deny the truth of a fact alleged by the defense is deemed an admission (People v. Gruden, 42 NY2d 214 (1977). However, the People can assert that they controvert a particular allegation without filing a specific denial. (People v. Weaver, 49 NY2d 1012). 2) Disposition of Motion to Suppress 5

8 a) Court must summarily grant a motion to suppress (no hearing is necessary) when 1) The prosecution concedes the allegations of fact or the legal basis for suppression (CPL (2)(a) 2) The prosecution stipulates that it will not offer the physical evidence against the defendant (CPL (2)(b) b) Court may summarily deny a motion to suppress when 1) The defense fails to allege sworn allegations of fact to support a legal basis for the motion. 2) The defense fails to allege a legal basis for the motion c) If a court does not summarily grant or deny a suppression motion, it must conduct a hearing. (CPL (4). 3) The Hearing a) A defendant has an absolute right of counsel at a Mapp hearing (People v. Anderson, 16 NY2d 282) (1965). b) While a defendant can forfeit his right to attend the hearing by absconding, he does not forfeit his right to the hearing itself. (People v. Whitehead, 143 AD2d 1066 (2d Dept. 1988). c) Hearsay is admissible at the hearing (CPL (4). d) The defendant is entitled to Brady and Rosario material at the hearing (People v. Geaslen, 54 NY2d 510 (1981); People v. Banch, 80 NY2d 610 (1992). 6

9 e) The prosecution has the burden of going forward to establish the legality of police conduct (People v. Malinsky, 15 NY2d 86 (1965). 1) The prosecution must present credible testimony. The burden will not be met if the testimony is: a) incredible as a matter of law; b) has all the appearances of having been tailored to nullify constitutional objections; c) evasive or disingenuous; d) physically impossible; e) contrary to experience; f) self-contradictory. f) Once the prosecution meets its burden, the defendant has the ultimate burden, by a fair preponderance of the evidence, to establish the illegality of the police conduct. (People v. Berrios, 28 NY2d 361 (1971). g) There are several exceptions to the rule placing the ultimate burden on the defense. In the following situations, the People have the ultimate burden: 1) The defendant consents to a search (People v. Whitehurst, 25 NY2d 389 (1969) (by clear and positive evidence). 2) The defendant abandons property (People v. Howard, 50 NY2d 583 (1980). 7

10 4) The Court s Ruling 3) The three exceptions to the fruit of the poisonous tree doctrine. a) Inevitable Discovery Doctrine (People v. Bookless, 120 AD2d 950 (4 th Dept. 1986). b) Attenuation (People v. Martinez, 37 NY2d 662 (1975). c) Independent Source (People v. Arnau, 58 NY2d 27 (1982). a) The suppression court must state on the record its finding of fact, conclusions of law and the reasons for its determination (CPL (6).. b) The ruling must be made prior to jury selection (CPL (3) c) Defendant has the right to a transcript of the hearing prior to the commencement of a trial provided the request is made before the hearing concludes. (People v. Sanders, 31 NY2d 463 (1973). B) Suppression of Statements (Huntley Hearing) (People v. Huntley, 15 NY 72 (1965) 1) Motion to Suppress a) Motion must be made as part of omnibus motion within 45 days of Criminal Court or Superior Court arraignment. The 45 day period begins to run from date when statement or identification notice is served. (Court can also grant extension for good cause ). 8

11 b) Motion must state a legal basis for suppression (710.60(1)). Suppression can be based on one of the following grounds: 1) A violation of Miranda v. Arizona, 384 US 436 (1966) (5 th Amendment). 2) A violation of traditional involuntariness rules (14 th Amendment). 3) A violation of the New York right to counsel rules (Article 1, Section 6, New York State Constitution). 4) A violation of the prohibition against illegal searches and seizures (4 th Amendment) (See also CPL that discusses suppression of statements involuntarily made ). c) Legal basis for suppression must normally be supported by sworn allegations of fact (CPL (1)). 1) When a Huntley hearing is requested there is an exception to the factual pleading requirement. (CPL (3)(b) and (3)). 2) The absence or inadequacy of factual allegations is not a basis on which the court may summarily deny the motion. 3) The exception does not apply when the defendant seeks to suppress a confession as fruit of an unlawful search or seizure; the defendant must allege sufficient sworn allegations of fact. (People v. Rosario, 245 AD2d 151 (1 st Dept. 1997); People v. Mendoza, 82 NY2d 415 (1993). 9

12 d) Prosecution is not required to file a written answer to the motion (CPL (1)); however the court can then determine the motion on the undisputed assertions of the defense. 1) If the prosecution files a written response, the failure to deny the truth of a fact alleged by the defense is deemed an admission (People v. Gruden, 42 NY2d 214 (1977)). However, the People can assert that they controvert a particular allegation without filing a specific denial. (People v. Weaver, 49 NY2d 1012) 2) Disposition of Motion to Suppress a) Court must summarily grant a motion to suppress (no hearing is necessary) when: 1) The prosecution concedes the allegations of fact or the legal basis for suppression (CPL (2)(a))... 2) The prosecution stipulates that it will not offer the statement against the defendant (CPL (2)(b)) b) The court may summarily deny a motion to suppress if the defense fails to allege a legal basis or ground for suppression c) If a Court does not summarily grant or deny a suppression motion, it must conduct a hearing. (CPL (4)). 3) The Hearing a) A defendant has an absolute right to counsel at a Huntley hearing (People v. Anderson, 16 N&2d 282 (1965)). 10

13 b) While a defendant can forfeit his right to attend the hearing by absconding, he does not forfeit his right to attend the hearing itself. (People v. Logan, 271 AD2d 549 (2d Dept. 2000)). c) Hearsay is admissible at the hearing (CPL (4)). d) The hearing is not designed to determine the truth or accuracy of a statement or whether the defendant actually made the statement; those issues are to be determined at trial (People v. Schompert, 19 NY2d 300 (1967)). e) The defendant is entitled to Brady and Rosario material at the hearing (People v. Geaslen, 54 NY2d 510 (1981)); People v. Banch, 80 NY2d 610 (1992)). f) The prosecution has the burden of going forward to establish either a lawful rationale for the conduct of the police or some other basis for averting suppression of a statement. (People v. Wesley, 73 NY2d 351 (1989)); People v. Chavis, 147 AD2d 582 (2d Dept. 1989)). g) With respect to traditional voluntariness issues (14 th Amendment), the prosecution has the ultimate burden to establish, beyond a reasonable doubt, that the statement was voluntary (People v. Huntley, 15 NY2d 72 (1965)); People v. Valeruis, 31 NY2d 52 (1972)). h) With respect to a violation of Miranda: 1) The people have the burden of going forward to establish: a) That the defendant was adequately advised of his Miranda rights (People v. Ringer, 140 AD2d

14 (2d Dept. 1988)); People v. Gonzalez, 55 NY2d 720 (1981). 2) Once the People meet this burden, the defendant has the ultimate burden of establishing: a) The rights were not given or understood (People v. Love, 85 AD2d 799 (3d Dept. 1981)). b) The defendant was in custody at the time he was interrogated. (Berkemer v. McCarty, 468 US 420 (1984)); cf People v. Alls, 83 N&2d 94 (1993). c) When the defendant has made two statements, and the first is obtained unlawfully, but the second lawfully, the first statement taints the later one (People v. Tanner, 30 NY2d 102 (1972)). I) With respect to New York s right to counsel rules, once the prosecution has met its burden of going forward, the defense has the ultimate burden of persuasion to establish that the defendant s right to counsel had attached at the time of the statement (People v. West, 81 NY2d 370 (1993)). 1) Once the defendant carries this burden, the prosecution then has the burden to establish: a) That the representation by counsel had ceased (People v. West, 81 NY2d 370 (1993)). b) That the right to counsel was validly waived if waiver was possible (People v. Davis, 75 NY2d 517 (1990)). 4) The Court s Ruling 12

15 a) The suppression Court must state on the record its findings of fact, conclusions of law and the reasons for its determination (CPL (6)). b) The ruling must be made prior to jury selection (CPL (3)). c) Defendant has the right to a transcript of the hearing prior to the commencement of a trial provided the request is made before the hearing concludes (People v. Sander, 31 NY2d 463 (1973)). d) A ruling suppressing a statement at trial is different from a preclusion order that prevents the People from introducing a statement because the People failed to serve proper notice of the evidence (CPL (3)). 1) The people may appeal a suppression ruling but may not appeal a preclusion order (CPL ). (People v. Laing, 79 NY2d 166 (1992)). C) Suppression of Identification Evidence (Wade Hearing) U.S. v. Wade, 388 US 218 (1967) 1) Motion to Suppress a) Motion must be made as part of omnibus motion within 45 days of Criminal Court or Superior Court arraignment. The 45 day period begins to run from date when statement or identification notice is served. (Court can also grant extension for good cause ). 13

16 b) Motion must state a legal basis for suppression (710.60(1)). Suppression can be based on one of the following three grounds: 1) Product of an unduly suggestive identification procedure (lack of due process) (14 th Amendment). 2) Violation fo an accused person s right to counsel (Sixth Amendment). 3) Fruit of an unlawful search or seizure (Fourth Amendment). c) Legal basis for suppression must normally be supported by sworn allegations of fact (CPL (1)). 1) When a Wade hearing is requested, there is an exception to the factual pleading requirement (CPL (3)(b) and (6)). 2) The absence or inadequacy of factual allegations is not a basis on which the court may summarily deny the motion. 3) The exception does not apply when the defendant seeks to suppress identification evidence as fruit of an unlawful search or seizure; the defendant must allege sufficient sworn allegations of fact. (People v. Mendoza, 82 NY2d 415 (1993)). d) Prosecution is not required to file a written answer to the motion (CPL (1)); however, the court can then determine the motion on the undisputed assertions of the defense. 14

17 1) If the prosecution files a written response, the failure to deny the truth of a fact alleged by the defense is deemed an admission. (People v. Gruden, 42 NY2d 214 (1977)). However, the People can assert that they controvert a particular allegation without filing a specific denial. (People v. Weaver, 49 NY2d 1012)). 2) Disposition of Motion to Suppress a) Court must summarily grant a motion to suppress (no hearing is necessary) when: 1) The prosecution concedes the allegations of fact or the legal basis for suppression (CPL (2)(a)). 2) The prosecution stipulates that it will not offer the identification evidence against the defendant (CPL (2)(b)). b) Court may summarily deny a motion to suppress when: 1) The defense fails to allege sworn specific facts when the identification evidence is the fruit of an unlawful search or seizure. 2) The defense fails to allege a legal basis or ground for suppression. 3) The defense alleges a legal basis for suppression but the prosecution demonstrates with sworn factual allegations that, as a matter of law, there is no identification subject to suppression under CPL , e.g. confirmatory identification. 15

18 a) If there is an issue of fact as to whether the identification is exempt from CPL , a hearing must be ordered. c) If a court does not summarily grant or deny a suppression motion, it must conduct a hearing. (CPL (4)). 3) The Hearing a) A defendant has an absolute right to counsel at a Wade hearing. (People v. Carracedo, 214 AD2d 404 (1 st Dept. 1995)). b) While a defendant can forfeit his right to attend the hearing by absconding he does not forfeit his right to the hearing itself (People v. Griffin, 225 AD2d 792 (2d Dept. 1996)); People v. Whitehead, 143 AD2d 1066 (2d Dept. 1988)). c) Hearsay is admissible at the hearing (CPL (4)). d) The defendant is entitled to Brady and Rosario material at the hearing. (People v. Geaslen, 54 NY2d 510 (1981)); People v. Banch, 80 NY2d 610 (1992). e) The prosecution has the burden of going forward with credible evidence that the police acted lawfully and that the pre-trial identification was non-suggestive (People v. Chipp, 75 NY2d 327 (1990)); People v. Ortiz, 90 NY2d 533 (1997). 1) To meet this burden the prosecution is not required to call the identifying witness, and can call the police officer who conducted the identification. People v. Brown, 111 AD2d 928 (2d Dept. 1985)). f) Once the prosecution goes forward, the defense has the burden, by a fair preponderance of the evidence to prove that the 16

19 pre-trial identification was unduly suggestive (People v. Jackson, 161 Misc.45 (Sup. Ct., Bronx Co., 1994)); People v. Chipp, 75 NY2d 327 (1990). 1) The defendant does not have the right to call the identifying witness unless the defense can make an offer of proof that the witness might fill a material gap in the police officer s narrative or that the witness account differs from the narrative (People v. Chipp, 75 NY2d 327 (1990)). g) Once the defense establishes that the pre-trial identification was unduly suggestive, the prosecution must prove, by clear and convincing evidence that there was an independent source for the identification. (People v. Ballot, 20 NY2d 600 (1967)); People v. Rahming, 26 NY2d 411 (1970)). The prosecution s purpose in doing so is to establish the admissibility of the in-court identification. 1) In order to establish independent source, the People must call the identifying witness to prove subjective facts known to that witness. (People v. Riley, 70 NY2d 523 (1987)). h) The People are expected to maintain a record of the identification procedure and a failure to retain the photographs used or a picture of the lineup creates a presumption of suggestiveness. (People v. Brennan, 222 AD2d 445 (2d Dept. 1995)). 1) The presumption may be rebutted by evidence detailing what the photographs would have demonstrated. (People v. Brennan, supra). 17

20 i) A suppression court should resolve both the issue of the prior identification as well as the admissibility of the in-court identification. 1) If a suppression court rules that there was no suggestiveness and then fails to address the issue of the in-court identification, should an appellate court reverse the ruling on suggestiveness, a new trial must be ordered (preceded by a new independent source hearing, unless the admission of the witness entire identification evidence was harmless error. (People v. Burts, 78 NY2d 20 (1991)). j) When the defendant s claim is that the right to counsel had attached, the defendant has the burden of proof as to the facts essential to that claim. (People v. Green, 188 AD2d 385 (1 st Dept. 1992)). 18

21 4) The Court s Ruling a) The suppression court must state on the record its finding of fact, conclusions of law and the reasons for its determination. (CPL (6)). b) The ruling must be made prior to jury selection (CPL (3)). c) Defendant has the right to a transcript of the hearing prior to the commencement of a trial provided the request is made before the hearing concludes. (People v. Sanders, 31 NY2d 463 (1973)). d) A ruling suppressing identification at trial is different from a preclusion order that prevents the People from introducing identification evidence because of the People s failure to serve proper notice of the evidence. (CPL (3)). 1) The People may appeal a suppression ruling but may not appeal a preclusion order (CPL ). People v. Laing, 79 NY2d 166 (1992). D) Other Pre-Trial Hearings 1) Alfinito Hearing (also called Franks hearing) Challenges veracity of affidavit in support of search warrant. (People v. Alfinito, 16 NY2d 181 (1965); Franks v. Delaware, 438 US 154 (1978)) 2) Darden Hearing In camera examination of confidential informant to establish probable cause (People v. Darden, 34 NY2d 177 (1974)) 3) Dunaway Hearing Whether evidence should be suppressed because defendant was placed in custodial detention on less 19

22 than probable cause. (Dunaway v. New York, 442 US 200 (1979)) 4) Forman Hearing Defendant challenges an order of protection that directs him to leave premises (People v. Forman, 145 Misc.2d 115 (NY Crim Ct 1989)) 5) Frye Hearing Court must rule on the admissibility of scientific evidence (still held in New York courts but superceded in federal courts by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 (1993) (Frye v. U.S., 293 F (1923)) 6) Gomberg Hearing Court s examination of defense counsel s conflict in representing more than one defendant (People v. Gomberg, 38 NY2d 307 (1975)) 7) Hinton Hearing Hearing to rule on courtroom closure (People v. Hinton, 31 NY2d 71 (1972)) 8) Martin Hearing - Admissibility of a defendant s refusal to take a breathalyzer test (People v. Martin, 143 Misc2d 341 (1989)) 9) Pringle Hearing Hearing conducted prior to conclusion of arraignment to determine whether a suspension of a driver s license would constitute a hardship (Pringle v. Wolfe, 88 NY2d 426 (1996)) 10) Rodriguez Hearing pre-wade hearing to determine whether defendant was known to the identifying witness, rendering a Wade hearing unnecessary (People v. Rodriguez, 79 NY2d 445 (1992)) 11) Sandoval Hearing Use of defendant s prior convictions for impeachment purposes (People v. Sandoval, 34 NY2d 371 (1974)) 20

23 12) Sirois Hearing (also Mastrangelo Hearing) Whether grand jury testimony should be admitted because defendant caused the unavailability of a witness (Holtzman v. Hellebrand, 92 AD2d 405 (2d Dept. 1983); U.S. v. Mastrangelo, 693 F2d 269 (2d Cir 1982)) 13) Ventimiglia Hearing Admissibility of prior similar acts or crimes by defendant as part of prosecution s direct case (People v. Ventimiglia, 52 NY2d 350 (1981)) 14) Parker Hearing People v. Parker, 57 NY2d ) Severance Motion - CPL , ) Bruton issue Bruton v. U.S., 391 US 123 (1968) 2) Antagonistic defenses People v. Mahboubian, 74 NY2d 174 (1989) 12) Youthful Offender - CPL 720 People v. Drayton, 39 NY2d 580 (1976) 13) Juvenile Offender - CPL 1.20(42) 14) Fitness to Proceed - Article 730 CPL Incapacitated Person - CPL (1) - A defendant who, as a result of mental disease or defect, lacks capacity to 1) understand the proceeding against him; or 2) assist in his own defense 15) Defendant s right to be present at critical stages of a trial 21

24 16) Jury Selection a) Pre-trial hearings 1) Sandoval - People v. Dokes, 79 NY2d 656 (1992) 2) Ventimiglia - People v. Spotford, 85 NY2d 593 (1998) b) Jury Selection People v. Antommarchi, 80 NY2d 247 (1992) c) Closing the Courtroom People v. Hinton, 31 NY2d 71 a) Voir Dire People v. Jean, 75 NY2d 744 (1989) b) Challenge for Cause - CPL , c) Peremptory Challenge - CPL Batson v. Kentucky, 476 US 79 (1986) J.E.B. Alabama ex rel T.B. 511 US 127 (1994) People v. Garcia, 217 AD2d 119 (2d Dept. 1995) (black females People v. Kein, 75 NY2d 638 (1990) 1) Batson Challenge a) A prima facie showing of discrimination b) The race neutral explanation c) The issue of whether the explanation is pretextual 22

25 17) Removal of Sworn Jurors - CPL a) Grossly unqualified People v. Buford, 69 NY2d 290 (1987) b) Unavailable for continued service - CPL (2) 18) Preliminary Instruction - CPL ) Opening Statement - CPL (3)(4) 20) Objections by defense counsel must sufficiently preserve error People v. Balls, 69 NY2d 641 (1988) 21) Trial Order of Dismissal - end of People s Case - CPL ) Defendant s Case a) Alibi - PL (1), CPL b) Justiftication - PL c) Agency People v. Roche, 45 NY2d 78 (1978) d) Intoxication - PL e) Affirmative Defenses - PL ) Not responsible - PL 40.15, CPL ) Extreme Emotional Difference 3) Entrapment - PL

26 4) Duress - PL ) Renunciation - PL ) Motion for Trial Order of Dismissal - end of entire case - CPL ) Pre-Charge Conference - CPL ) Summation 26) Court s Charge - CPL 300 a) Must be oral b) Written notations or instructions - CPL (2) c) Jury Note Taking People v. Tucker, 77 NY2d 861 (1991) 27) Jury Deliberations a) Jurors must be kept together - CPL People v. Coons, 75 NY2d 796 (1990) b) Alternate jurors cannot converse with regular jurors c) Jurors can go home with consent of defendant People v. Webb, 78 NY2d 335 (1991) 28) Response to Jury Note a) Timing of response People v. Aleman, 12 NY2d 806 (2009) 24

27 b) Nature of response People v. Greene, 75 NY2d 875 (1990) c) Notice to counsel - CPL People v. O Rama, 78 NY2d 270 (1991) 29) Allen Charge Allen v. U.S., 164 US 492 (1896) 30) The Verdict - CPL a) Repugnant Verdicts People v. Green, 71 NY2d 1006 (1988) b) Partial Verdicts - CPL ) Polling the Jury 32) Mistrial - Deadlocked Jury Matter of Plummer v. Rothwax, 63 NY2d 243 (1984) 33) Motion to Set Aside Verdict - CPL a) Grounds which require reversal upon appeal b) Improper Jury Conduct c) Newly discovered evidence People v. Salemi, 39 NY2d 208 (1955) 34) Sentencing a) Requirement of Pre-Sentence Report - CPL b) Victim s Impact Statement - CPL (2)(b) 25

28 c) Cruel and Unusual Punishment People v. Thompson, 83 NY2d 477 (1994) d) Sentence of Probation - CPL 410 e) Sentence of Imprisonment 1) First felony offender - PL ) Second felony offender - PL ) Persistent felony offender - PL ) Persistent violent felony offender - PL ) Post Judgment Proceedings a) Judgment of Not Responsible by Reason of Mental Disease or Defect - CPL ) Orders of Conditions 2) Retention Hearing b) Motion to Vacate Judgment - CPL 440 c) Writ of Habeas Corpus People v. Bachert, 69 NY2d 593 (1987) d) Bail Pending Appeal - CPL , , ) Appeals - CPL 450, 460, 470 a) Intermediate Appellate Courts 26

29 1) Appealability 2) Reviewability 3) Verdict against the weight of evidence People v. Bleakely, 69 NY2d 490 (1987) b) Court of Appeals 1) Appealability 2) Reviewability a) Preservation People v. Balls, 69 NY2d 641 (1986) b) Questions of Law 27

30