AD2: Decisions for May 2, 2007

Murder conviction overturned based on prosecutor's misconduct

People v Bennett, 2007 NY Slip Op 03937 [available here]

Prior to trial, defense counsel asked the prosecutor to turn over a specific police report that memorialized the statement of a civilian witness (Ricky Davis). The prosecutor denied that Davis was going to testify, and therefore the police report was not Rosario material.

At the end of their case, the prosecutor called Ricky Davis to testify. Davis was allowed to testify (over objection) that the murder victim had identified the defendant as his killer before police arrived. (Bennett, 2007 NY Slip Op 03937.) The Second Department reversed based on the prosecutor's misconduct in a very strongly-worded decision, holding the prosecutor "ambushed the defense by his deception" and "capitaliz[ed] on these unfair tactics in summation." (Id.)

Denial of right to counsel may be raised for the first time on appeal

People v Wood, 2007 NY Slip Op 03955 [available here]

During his interrogation, Mr. Wood "told police 'I think I should get a lawyer'[...]." (Wood, 2007 NY Slip Op 03955.) Questioning continued, and Wood ultimately gave a videotaped statement. The Second Department held that the statement should have been suppressed, and that the error did not need to be preserved for appeal. "While this issue was not raised before the hearing court, the claimed deprivation of that constitutional right may be raised for the first time on appeal." (Id.)

While Mr. Wood dodged the preservation bullet--fatal to so many appeals--he was felled by another standby of appellate jurisprudence; the Court held the "error was harmless beyond a reasonable doubt in light of the overwhelming evidence of the defendant's guilt." (Id.)