Recent OAD Victories

 

People v. Marcucci, 2018 NY Slip Op 00634 (1st Dep’t February 1, 2018):  the First Department, in the interest of justice, vacated OAD’s client’s second-degree assault conviction, and remanded for a new trial. OAD’s client presented a justification defense at trial.  The Appellate Division found that the trial court erred in failing to give a “stop deliberating” instruction to the jury, informing them that if they accepted the defense and acquitted of the top count (attempted murder), the jury should not continue to deliberate on the other charges.  (Eunice Lee)

People v. Greogory, 2018 NY Slip Op 00070 (1st Dep't January 4, 2018):  the First Department, in the interest of justice, reduced OAD's client's 5 to 15 year sentence for conspiracy in the first degree, attempted murder in the second degree and criminal possession of a weapon in the second degree to 3⅓ to 10 years on the conspiracy conviction and 3½ years on the weapon possession, with 5 years postrelease supervision.  In this case, OAD's client was charged, and convicted, as an adult for conduct that took place when he was 14 and 15 years old. (Lauren Stephens-Davidowitz)

People v. Peters, 2017 NY Slip Op. 08417 (1st Dep’t December 5, 2017):  the First Department vacated OAD’s client’s drug sale conviction after concluding that, for a six month period, OAD’s client was represented by an attorney that labored under an actual conflict of interest.  Specifically, counsel simultaneously represented both the accused seller (OAD’s client) and the purported buyer (whose guilty plea included a description of the seller that matched OAD’s client and who testified against OAD’s client at trial) in an alleged drug sale transaction. The Court remanded the case for a new trial wherein the testimony of the buyer is excluded.  (Kate Mollison)

People v. Cintron, 2017 NY Slip Op. 08184 (November 21, 2017):  the First Department vacated OAD’s client’s guilty plea because the trial court failed to ensure it was knowing and voluntary, even though the client “made statements casting significant doubt upon his guilt and calling into question his understanding of the nature of the charges against him.” (Sam Mendez)

People v. Estremera, 2017 NY Slip Op. 08036 (November 16, 2017): the Court of Appeals granted OAD’s client a new sentencing hearing after finding that his right to be present at sentencing was violated. The Court reversed the Appellate Division and found that Criminal Procedure law § 380.40 requires a defendant to be personally present at the reimposition of his/her original sentence pursuant to Penal Law § 70.85 unless the defendant validly forfeits or waives the right to be present. The Court reiterated the convicted person’s “right to hear the court’s pronouncement of sentence and to address the court, even if it is certain that the sentence is a foregone conclusion unaffected by whatever the defendant might do or say.” (Sam Mendez)

People v. Swinson, 2017 NY Slip Op. 07302 (October 19, 2017): the First Department held that the first degree burglary conviction was legally insufficient because the evidence did not support a finding that OAD’s client “entered or remained unlawfully” in a dwelling with the intent to commit a crime therein. (Eunice Lee)

People v. Rosa (October 11, 2017): the Bronx Supreme Court reduced OAD’s client’s Sex Offender Registration Act (SORA) designation from level two to level one.  (Will Kendall) 

People v. Ablakatov (October 11, 2017): the New York County Supreme Court vacated OAD’s client’s plea because the trial court did not advise him of the deportation consequences. (Kate Mollison)

People v. Ortiz, 2017 NY Slip Op. 06990 (October 5, 2017):  the First Department vacated guilty pleas to two counts of burglary in the second degree, finding that this crime requires the unlawfully entered building to be a “dwelling” and, during the allocution, OAD’s client maintained that he only committed commercial burglaries.  The Court concluded that this was one of the “rare cases” where the defendant’s recitation of the facts negated an element of the offense and that the plea court’s follow up questions did not sufficiently address the problem. (Eunice Lee)