Leftovers (November/December term)

Here are the rest of the noteworthy decisions from the Fourth Department's November/December 2005 term (such as they are):

People v Vigliotti, __ AD3d __ (available here): Defendant's attorney was found guilty of federal crimes and disbarred subsequent to representing defendant at murder trial. It was also revealed during disciplinary action that the attorney was addicted to cocaine and alcohol during time he was representing defendant. Defendant made a 440 motion arguing that "he was denied effective assistance of counsel because defense counsel had a substance abuse addiction and was involved in criminal activity at the time he was representing defendant." (People v Vigliotti, __ AD3d at __.) The trial court denied the 440 motion without a hearing, and the Fourth Department affirmed because defendant "failed to allege any facts linking the problems of defense counsel to his representation of defendant." (Id.)

People v Harrison, __ AD3d __ (available here) & People v Haberer, __ AD3d __ (available here): sounding a familiar refrain, the Fourth Department finds the defendant's legal sufficiency arguments unpreserved because trial defense counsel failed to renew his motion after presenting evidence."

People v Little, __ AD3d __ (available here): finding Sandoval issue only partially preserved because "[a]lthough defendant contends that the court's Sandoval ruling constitutes an abuse of discretion, he objected to the court's ultimate Sandoval ruling only with respect to the ruling on a misdemeanor sexual abuse conviction, and thus only that part of his contention is preserved for our review." See my previous post on this issue here.

People v Vega, __ AD3d __ (available here): holding that defendant's waiver of right to appeal "encompasses the contention of defendant that the Rockefeller Drug Law Reform Act, enacted after he was sentenced, violates his right to equal protection of the law because it allows persons convicted of class A-I drug felonies to petition for resentencing pursuant to the Act's sentencing scheme but does not afford the same relief to persons, including defendant, who were convicted of class A-II drug felonies."

People v Taylor, __ AD3d __ (available here): emergency exception to warrant requirement found applicable where "[i]n responding to a telephone call from a relative informing the police that defendant's father was not answering telephone calls or responding to letters or knocking on his door for a period of several weeks, a police officer detected a 'strong aroma' emanating from an open window, and he believed the odor to be that of a decaying body." I have not read the cases the Fourth Department cites to for this broad reading of the emergency exception, but the fact that a person is missing for weeks and the responding officer can smell the decomposing body would seem to lead to the unremarkable conclusion that time is not really of the essence anymore.


People v McClain, __ AD3d __ (available here): SCI held jurisdictionally defective "to the extent that it charges attempted robbery in the third degree, which under the circumstances was not properly joinable with the assault charges on which defendant was held for action of the grand jury;" the Court further noted that the issue did not need to be preserved and was not encompassed by defendant's waiver of right to appeal.

People v Rodriguez, __ AD3d __ (available here): trial court erred "in permitting the prosecutor to impeach his own witnesses because the trial testimony of those witnesses did not tend to disprove the People's position with respect to a material fact or affirmatively damage the People's case," but error harmless.