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New York Criminal Law Newsletter a Publication of the Criminal Justice Section of the New York State Bar Association

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New York Criminal Law Newsletter a Publication of the Criminal Justice Section of the New York State Bar Association NYSBA SPRING 2012 | VOL. 10 | NO. 2 New York Criminal Law Newsletter A publication of the Criminal Justice Section of the New York State Bar Association Photo of Members at Annual Luncheon See Centerfold for Additional Photos of Annual Luncheon and CLE Program NEW YORK STATE BAR ASSOCIATION From the NYSBA Book Store > Section Members get 20% discount* with coupon code Criminal Law PUB1390N and Practice Includes Forms on CD The Criminal Law and Practice monograph has been AUTHORS updated and redesigned and is now part of the New York Lawrence H. Gray, Esq. Lawyers’ Practical Skills Series.** Former Special Assistant Attorney General New York State Offi ce of the Covering the offenses and crimes that the general Attorney General practitioner is most likely to encounter, this practice guide addresses pretrial motions, motions to suppress evidence Hon. Leslie Crocker Snyder of an identifi cation, motions to suppress physical evidence, Special Narcotics Part New York, NY pretrial issues, special problems in narcotics cases, and more. Hon. Alex M. Calabrese Red Hook Community Justice Center The 2011-2012 release is current through the 2011 New Brooklyn, NY York legislative session. PRODUCT INFO AND PRICES 2011-2012 • 152 pp., softbound • PN: 406491 Order multiple titles to take advantage of our low fl at rate shipping charge of $5.95 per order, regard- NYSBA Members $90 less of the number of items shipped. $5.95 shipping and handling offer applies to orders shipped within the continental U.S. Shipping and handling charges for orders shipped outside the continental U.S. Non-members $105 will be based on destination and added to your total. The titles included in the New York Lawyers’ Practical Skills Series are also avail- *Offer expires April 30, 2012. able as segments of the New York Lawyer’s Deskbook and Formbook, a seven- volume set that covers 27 areas of practice. The list price for all seven volumes of ** Formerly the New York Practice the Deskbook and Formbook is $710. Monograph Series Get the Information Edge 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB1390N Table of Contents Page Message from the Chair—A Personal Commentary ....................................................................................................................4 (Marvin E. Schechter) Message from the Editor ..................................................................................................................................................................6 (Spiros A. Tsimbinos) Feature Article Challenging the Admissibility of DNA Identifi cation Evidence ................................................................................. 7 (Shirley K. Duffy) New York Court of Appeals Review ........................................................................................................................... 12 Recent United States Supreme Court Decisions Dealing With Criminal Law and Recent Supreme Court News ......................................................................................................................... 20 U.S. Supreme Court Announces Assignment of Justices During the October 2011 Term ................................ 24 Cases of Interest in the Appellate Divisions ............................................................................................................. 26 For Your Information Report Indicates Possible Fraud in Receipt of College Tax Credits .......................................................................... 30 College Tuition Soaring ................................................................................................................................................... 30 U.S. Income Gap Widens ................................................................................................................................................ 30 Reduction in Public Sector Positions ............................................................................................................................. 31 Increase in Gang Activities ............................................................................................................................................. 31 Justice Prudenti Named Chief Administrative Judge ................................................................................................ 31 Numerous Federal Inmates to Receive Early Release ................................................................................................ 31 Earth’s Population Reaches Seven Billion .................................................................................................................... 31 New Statistics Reveal Startling Increase in Poverty in America ............................................................................... 32 Suffolk County Provides Additional Funding for Assigned Counsel Fund ........................................................... 32 More Americans Living to Age 90 ................................................................................................................................. 32 U.S. Court of Appeals Reverses Bruno Convictions and Orders New Trial............................................................ 32 Criminal Appeals Statistics ............................................................................................................................................. 32 Inspector General Issues Report on Nassau County Police Lab ............................................................................... 33 Governor Cuomo to Fill Appellate Division Vacancies .............................................................................................. 33 Appellate Courts Struggle With Two Years of Drug Law Re-Sentencing ................................................................ 33 Border Arrests of Illegal Aliens ...................................................................................................................................... 34 Cutbacks Affecting Operation of Court System .......................................................................................................... 34 Offi ce of Court Administration Submits New Judicial Budget ................................................................................. 34 Passage of Bar Exams ...................................................................................................................................................... 34 Population Growth in United States Slows Signifi cantly........................................................................................... 35 Number of Marriages Sharply Decreasing ................................................................................................................... 35 Renting Increases as Homeownership Declines .......................................................................................................... 35 Court System Conducts Jury Pool Survey ................................................................................................................... 35 New Study Pinpoints Major Causes of U.S. Deaths ................................................................................................... 35 The Counting of Prisoners for Election Purposes ....................................................................................................... 35 2011 New York City Crime Statistics Indicate a Slight Increase in Major Crimes .................................................. 36 Fewer Judges Leave Bench in 2011 ................................................................................................................................ 36 Governor Cuomo’s Proposed Extension of DNA Database to Cover All Crimes .................................................. 36 Governor Proposes Handling Forfeiture Proceedings at Sentencing ....................................................................... 36 About Our Section and Members ................................................................................................................................ 37 NYSBA New York Criminal Law Newsletter | Spring 2012 | Vol. 10 | No. 2 3 Message from the Chair—A Personal Commentary The core of the legal sys- because police witnesses were still unavailable. He asked tem involves the art of decision for a date of July 25, which was granted. making by judges. In recent At that point, the Legal Aid Attorney, who had been years, social scientists have been representing the Defendant since arraignment, informed exploring how decisions are the Court he was leaving the offi ce and asked that the made, and the news is not good. next court date be for “control purposes” for the assign- Psychologists have learned that ment of a new attorney. The Court denied the request, human beings rely on mental telling the Legal Aid Attorney to have the new attorney shortcuts, often referred to as be in Court that day or the next to confer with him so the “heuristics” to make complex case would be ready for trial on July 25. The assigned decisions, and while most of the Legal Aid attorney then told the Court that the two at- time heuristics can lead to good torneys who could replace him would not be back from judgments they can also pro- vacation until the end of July, but the Court insisted that a duce systemic errors in judgment. Reliance on heuristics new attorney be assigned, opining that the assigned coun- can create cognitive illusions—seeing that which is not sel surely must have told his supervisors about his depar-
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