Upcoming arguments at the Court of Appeals

Three cases out of the Fourth Department are currently pending argument before the Court of Appeals (Big Hat Tip to the fine folks at the Center for Appellate Litigation). Here they are, in no particular order:

People v Bolling: the issue in Bolling is whether a trial court is required to instruct the jurors that they must acquit defendant of all charges (including lesser-included offenses) if they find defendant justified as to a top count. Both the First and Second Departments require such a charge, and failure to give it is reversible error. In Bolling, the Fourth Department refused to reverse based on a trial court's failure to give the requested charge, and recognized the split thus created among the Appellate Division Departments. See my previous post on Bolling here. The case will be argued October 12, 2006. (Full disclosure: I am Mr. Bolling's attorney and will be arguing his case before the Appeals.)

People v Cagle: the defendant in Cagle was sentenced as a second felony offender based on the trial court's determination that he had been convicted of a prior felony within 10 years of the commission of the crime he was being sentenced on. In calculating the 10-year period, the trial court excluded time defendant spent on work release supervision, reasoning that "work release" was the equivalent of "incarceration" for purposes of tolling the 10-year time period. The Fourth Department, in a 3-2 decision, affirmed the trial court's decision and held that "the tolling provision applies to the period of time in which defendant was in the day-reporting work release program inasmuch as he remained under the control and custody of the Department of Correctional Services." (Cagle, 26 AD3d 735 [2006].) As the dissenters noted, the Second Department has held just the opposite, and the Justice Pine (one of the AD4 dissenters) granted leave to resolve the question. The case will be argued October 19, 2006.

People v Carter: the primary issue in Carter is whether the trial court erred in failing to charge depraved indifference Assault 1st and intentional Assault 2nd in the alternative. The Fourth Department found the issue to be unpreserved and declined to reach it in the interests of justice.

You can see the entire list of the upcoming Court of Appeals arguments over at the Center for Appellate Litigation.