Articles Posted in Criminal Law and Justice

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May 25-29, 2009.

U.S. Supreme Court, May 26, 2009 Haywood v. Drown, No. 07-10374 In a 42 U.S.C. section 1983 action by a prisoner, judgment for Defendant-Officers is reversed where Correction Law section 24, as applied to Section 1983 claims, violates the Supremacy Clause, because New York’s policy of shielding correctional officers from liability for conduct performed in the scope of their employment is contrary to Congress’s judgment that all persons who violate federal rights while acting under color of state law shall be held liable for damages.

U.S. Supreme Court, May 26, 2009 Montejo v. Louisiana, No. 07-1529 Capital murder conviction is vacated, where Michigan v. Jackson, 475 U.S. 625 (1986), is overruled, because requiring an “initial invocation” of the right to counsel in order to trigger the Jackson presumption might work in states that require an indigent defendant formally to request counsel before an appointment is made, but not in more than half the states that appoint counsel without request from the defendant. .

U.S. Supreme Court, May 26, 2009 Abuelhawa v. US, No. 08-192 Drug distribution conviction is reversed and the case remanded, where Defendant’s drug purchases from a third party over the phone constituted misdemeanors, because using a telephone to make a misdemeanor drug purchase does not “facilitate” felony drug distribution in violation of 18 U.S.C. section 843(b).
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Update from the Lexis Alert Service,

May 26 & 29, 2009:.

1. People v. Rodriguez, 614, 4545N/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4005; 2009 N.Y. App. Div. LEXIS 3802, May 21, 2009, Decided, May 21, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Michael J. Obus, …

2. People v. Reyes, 618, 3444/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4008; 2009 N.Y. App. Div. LEXIS 3804, May 21, 2009, Decided, May 21, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (William A. Wetzel, …

3. People v. Grant, 610, 871/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4001; 2009 N.Y. App. Div. LEXIS 3800, May 21, 2009, Decided, May 21, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (John Cataldo, J.), …

4. People v. Rincon, 623, 1187/03, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4012; 2009 N.Y. App. Div. LEXIS 3801, May 21, 2009, Decided, May 21, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment of resentence, Supreme Court, New York County (Ruth Pickholz, J.), …

5. People v. Guardino, 5053, 3491/04, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3995; 2009 N.Y. App. Div. LEXIS 3817, May 21, 2009, Decided, May 21, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Robert H. Straus, …

6. People v. Rodriguez, 615, 4545N/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 4006; 2009 N.Y. App. Div. LEXIS 3807, May 21, 2009, Decided, May 21, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (William A. Wetzel, …
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Update from the Lexis Alert Service,

May 27, 2009:.

1. People v. Fuller, 523, 1944/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3770; 877 N.Y.S.2d 890; 2009 N.Y. App. Div. LEXIS 3653, May 12, 2009, Decided, May 12, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.

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May 17-22, 2009.

U.S. 1st Circuit Court of Appeals, May 19, 2009 US v. Paret-Ruiz , No. 06-2709
Conviction for conspiracy to import cocaine with intent to distribute is reversed and remanded with instructions to enter a verdict of not guilty where the evidence was insufficient for a reasonable jury to conclude that defendant had an agreement to import or possess cocaine with anyone other than a government agent.

U.S. 1st Circuit Court of Appeals, May 20, 2009 US v. Pulido , No. 08-1626
Conviction and sentence on drug and firearms charges is affirmed where: 1) the district court did not commit reversible error in denying defendant’s motion to withdraw his guilty plea without conducting an evidentiary hearing, as defendant’s allegations that his plea was not voluntary and knowing were contradicted by the record; 2) the court did not abuse its discretion in denying defendant’s motion to recuse based on the court’s statement about defendant in a different case, as the evidence shows that there was no likely appearance of partiality; 3) the court did not err and fail to consider mitigating evidence related to the U.S.S.G. sec. 3553(a) factors, as the record shows the court considered all of the mitigating evidence; and 4) the court did not err in imposing the mandatory minimum sentence for the firearm count under 18 U.S.C. sec. 924(c). ..

U.S. 3rd Circuit Court of Appeals, May 20, 2009 US v. Jones, No. 07-2798 Conviction for conspiracy to commit murder, attempted murder and assault with a dangerous weapon under the Violent Crimes in Aid of Racketeering Act is affirmed where: 1) the district court did not abuse its discretion in failing to restart jury selection after six co-defendants pled guilty during voir dire, and thus did not violate his Fifth and Sixth Amendment rights; 2) the court properly rejected defendant’s motion for judgment of acquittal on his conviction for murder conspiracy, as a rational jury could have found all elements of the murder conspiracy charge beyond a reasonable doubt; 3) the court did not abuse its discretion by admitting challenged evidence at trial as the evidence did not overwhelm the jury or prejudice its judgment; and 4) defendant’s sentence was not procedurally or substantively unreasonable.
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Update from the Lexis Alert Service,

May 21, 2009:.

1. People v. Bolar, 599, 5414/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3946; 2009 N.Y. App. Div. LEXIS 3791, May 19, 2009, Decided, May 19, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Eduardo Padro, J.), …

2. People v. Liggan, 573, 574, 297/04, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3929; 2009 N.Y. App. Div. LEXIS 3781, May 19, 2009, Decided, May 19, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Carol Berkman, J.), …

3. People v. McNeely, 589, 590, 531/08, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 3940; 2009 N.Y. App. Div. LEXIS 3783, May 19, 2009, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Renee A. White, …

4. People v. Tucker, 176, 800/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 2469; 60 A.D.3d 595; 2009 N.Y. App. Div. LEXIS 2510, March 31, 2009, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Bonnie Wittner, J. …

5. People v. Jackson, 185, 11990/91, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 2475; 60 A.D.3d 599; 2009 N.Y. App. Div. LEXIS 2488, March 31, 2009, Decided, March 31, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Jeffrey M. Atlas, …
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Update from the Lexis Alert Service,

May 20, 2009:.

1. People v. McDonald, 157, 5982/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 2287; 60 A.D.3d 553; 2009 N.Y. App. Div. LEXIS 2233, March 26, 2009, Decided, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Carol Berkman, J.), …

2. People v. Batista, 163, 5636/05, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 2292; 60 A.D.3d 557; 874 N.Y.S.2d 808; 2009 N.Y. App. Div. LEXIS 2229, March 26, 2009, Decided, March 26, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Bonnie G. Wittner, …

3. People v. Ramirez, 168, 6600/03, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 2296; 60 A.D.3d 560; 875 N.Y.S.2d 482; 2009 N.Y. App. Div. LEXIS 2235, March 26, 2009, Decided, March 26, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Edwin Torres, J.), …

4. People v. Pequero, 143, 1348/06, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 2242; 60 A.D.3d 542; 2009 N.Y. App. Div. LEXIS 2418, March 24, 2009, Decided, March 24, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Bonnie G. Wittner, …

5. People v. Cantey, 120, 2132/07, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT, 2009 NY Slip Op 2228; 60 A.D.3d 533; 874 N.Y.S.2d 805; 2009 N.Y. App. Div. LEXIS 2259, March 24, 2009, Decided, March 24, 2009, Entered, THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION., THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE OFFICIAL REPORTS.
The People of the State …
Judgment, Supreme Court, New York County (Lewis Bart Stone, …
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