Supreme Court of the State of New York Second Department Appellate Term 9th and 10th Judicial Districts Appellate Term

Similar documents
New York Supreme Court Appellate Term -- Second Department 9th and 10th Judicial Districts

BRIEF OF APPELLANT APPEAL FROM THE DECISION OF THE CIRCUIT COURT OF MADISON COUNTY, MISSISSIPPI

IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS

Case No. IN THE CIRCUIT COURT IN AND FOR THE 11 TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA. JONATHAN CORBETT, Defendant/Appellant

CASE NO CR CASE NO CR IN THE COURT OF APPEALS FOR THE FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS AT DALLAS, TEXAS

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WILLIAMS COUNTY. Court of Appeals No. WM Appellee Trial Court No.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

CASE NO CR IN THE COURT OF APPEALS FOR THE FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS AT DALLAS, TEXAS. JAMES ALLEN BALL, JR.

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT. v. Case No. 5D

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs June 19, 2012

STATE OF OHIO LASZLO KISS

Circuit Court for Cecil County Case No. 07-K UNREPORTED

Court of Appeals of Ohio

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT. Plaintiff and Respondent, ) v. ) Defendant and Appellant.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY. Trial Court Nos. CR Appellant Decided: March 31, 2015 * * * * *

CASE NO. 1D Andy Thomas, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.

IN THE COURT OF CRIMINAL APPEALS OF TEXAS VS. THE STATE OF TEXAS, Appellee

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY. Court of Appeals No. L Trial Court No.

No CR STATE S BRIEF

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No. 25 MDA 2014

DISTRICT OF COLUMBIA COURT OF APPEALS. Nos. 00-CM-718 & 01-CO Appeals from the Superior Court of the District of Columbia (M )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

Plaintiff-Appellee, : Case No. 12CA42 GEORGE ESPARZA, : DECISION AND JUDGMENT ENTRY

Court of Appeals of Ohio

No CR No CR. FREDDY GONZALEZ, Appellant. vs. THE STATE OF TEXAS, Appellee APPELLANT S BRIEF

IN THE COURT OF APPEAL OF CALIFORNIA THIRD APPELLATE DISTRICT

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

In The Court of Appeals Fifth District of Texas at Dallas. No CR. DAVID CARL SWINGLE, Appellant V. THE STATE OF TEXAS, Appellee

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON AUGUST SESSION, 1996

COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT. Reversed and remanded

STATE'S RESPONSE BRIEF

SUPREME COURT OF ARKANSAS No. CR

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No EDA 2012

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY. Court of Appeals No. OT Trial Court No.

The STATE of Ohio, Appellee, JOHNSON, Appellant. [Cite as State v. Johnson, 155 Ohio App.3d 145, 2003-Ohio-5637.] Court of Appeals of Ohio,

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS UNITED STATES. Senior Airman TROY N. SINES United States Air Force ACM S32192.

STATE OF OHIO, JEFFERSON COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT

Court of Appeals of Ohio

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No MDA 2013

Court of Appeals. First District of Texas

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY. Court of Appeals No. E Trial Court No CR-310

NO CR IN THE FIFTH COURT OF APPEALS OF TEXAS AT DALLAS. STEVEN ROTHACKER, Appellant VS. THE STATE OF TEXAS, Appellee

No CR. RICHARD HARRIS, Appellant. vs. THE STATE OF TEXAS, Appellee APPELLANT S BRIEF

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT. Case No. 4D Lower Tribunal No LEONARD CUMINOTTO, Appellant,

Fourth Court of Appeals San Antonio, Texas

UNITED STATES AIR FORCE COURT OF CRIMINAL APPEALS UNITED STATES. Senior Airman DARICK M. MERKLE United States Air Force ACM S32223.

COURT OF APPEALS OF VIRGINIA. IVAN LEANDER HARRIS OPINION BY v. Record No JUDGE ROBERT P. FRANK MARCH 4, 2009 COMMONWEALTH OF VIRGINIA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

Court of Appeals of Ohio

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs March 22, 2005

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT. v. Case No. 5D

THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO. Criminal Appeal from the Willoughby Municipal Court, Case No. 02 CRB

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

Commonwealth of Kentucky Court of Appeals

Fourteenth Court of Appeals

Court of Appeals of Ohio

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY APPELLATE DIVISION

COURT OF APPEAL FOR THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION [NUMBER] ) APPELLANT S MOTION TO Plaintiff and Respondent,

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs February 16, 2005

Court of Appeals of Ohio

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P : : : : : : : : :

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WILLIAMS COUNTY. Court of Appeals No. WM Appellee Trial Court No.

IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT. Clay O. Burris, : (REGULAR CALENDAR) D E C I S I O N. Rendered on November 19, 2013

Court judgment that denied a petition for postconviction relief. filed by Kavin Lee Peeples, defendant below and appellant herein.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE A112490

IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

IN THE MISSOURI COURT OF APPEALS EASTERN DISTRICT. STATE OF MISSOURI, ) ) Respondent, ) ) vs. ) No. ED ) ) JERRY BECK, ) Appellant.

No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS STEVEN TYRONE DEAMON, Appellant THE STATE OF TEXAS, Appellee

CHRISTOPHER L. KINSLER Lawrenceville, GA Associate Assistant Attorney General 150 E. Gay St. 16 th Floor Columbus, Ohio 43215

STATE OF LOUISIANA NO KA-0689 VERSUS COURT OF APPEAL LAWRENCE JOSEPH FOURTH CIRCUIT STATE OF LOUISIANA * * * * * * *

IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT. Plaintiff-Appellee, : No. 11AP-266 v. : (C.P.C. No. 05CR )

SUPERIOR COURT DECISION

IN THE COURT OF APPEAL OF MANITOBA

BRIEF OF THE APPELLANT

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT

[J ] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT : : : : : : : : : : : DISSENTING OPINION

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE December 15, 2004 Session

IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS DALLAS, TEXAS. VS. NOS CR and CR THE STATE OF TEXAS, Appellee.

STATE OF OHIO LAVELLE COLEMAN

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CAUSE NO CA APPEAL FROM THE CIRCUIT COURT OF ATTALA COUNTY, MISSISSIPPI

STATE OF OHIO ) IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF WAYNE ) DECISION AND JOURNAL ENTRY

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs September 20, 2000

Eyler, Deborah S., Leahy, Alpert, Paul E., (Senior Judge, Specially Assigned)

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No. 44 MDA 2013

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P Appellant No EDA 2013

COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT

BOARD OF ASSESSMENT REVIEW OF NEW CASTLE COUNTY RULES OF PROCEDURE

STATE OF OHIO ) IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT ) DECISION AND JOURNAL ENTRY

COURT OF APPEALS THIRD APPELLATE DISTRICT AUGLAIZE COUNTY PLAINTIFF-APPELLEE CASE NO

Transcription:

Supreme Court of the State of New York Second Department Appellate Term 9th and 10th Judicial Districts Appellate Term THE PEOPLE OF THE STATE OF NEW YORK --Against-- Respondent, ERIC ROSENBAUM, Appellant. DOCKET # 2005-1727 D CR BRIEF FOR THE APPELLANT Dated: November 6, 2006 Matisyahu Wolfberg Attorney for the Appellant 19 Koritz Way, Suite 212 Spring Valley, New York 12037 (845) 362-3234

TABLE OF CONTENTS TABLE OF CONTENTS...2 TABLE OF AUTHORITIES......3 PRELIMINARY STATEMENT......4 QUESTIONS PRESENTED........4-9 STATEMENT OF FACTS........4-9 ARGUMENTS......4-9 CONCLUSION...9 2

TABLE OF AUTHORITIES Cases Page People v Feldes, 73 NY2d 661 [1989])..5 Douglas V. Alabama, 380 U.S. 415 (1965)...6 Delaware v. Van Arsdall, (475 U.S. 673 (1986)...6 Chapman v. California, 386 U.S. 18...6 People v. Dewitt, 171 Misc.2d 622 (1996).8 People v Glass, 43 N.Y.2d 283, 285.. 8 Altkrug v. Horowitz 111 A.D. 420; 97 N.Y.S. 716; 1906.10 Statutes and Legislative Material New York Vehicle & Traffic Law 1180(d) (Consol. 1996)... 6 New York Crim. Proc. Law Article 460.10(3). (Consol. 1996)......6 United States Constitution Sixth Amendment 6 United States Constitution Fourteenth Amendment. 6 3

PRELIMINARY STATEMENT AND PROCEDURAL HISTORY On October 11, 2005, a decision and order of conviction was filed by Justice Spiegel (presently retired) convicting Appellant of VTL 1180(d), (Speeding 74 in a 55 zone) in a bench trial heard July 12, 2005, in the 4:00 pm session of the Lagrange Justice Court. The District Attorney was absent at trial. New York State Trooper Cogan served as prosecutor and the People s sole witness. Notice of Appeal and affidavit of errors dated November 2, 2005 were timely filed to the Lagrange Town Court, commenced the within appeal. As required, the Dutchess County District Attorney and the State Trooper were served with notice of the appeal on November 2, 2005. On February 13, 2006, Lagrange Town Court filed an ANSWER TO DEFENDANT S AFFIDAVIT OF ERRORS which stated only STEPHEN L. GRELLER, being duly sworn, deposes and says: The Decision stand (sic) as Answer to Affidavit of Errors. Said notarized Answer, is signed by Justice Greller. Appellant was not served with said answer within 10 days of filing the affidavit of errors. On May 26, 2006, this Honorable court granted Appellant s motion to compel Lagrange Town Court to answer according to the requirements of NY CPL 460.10(3) to file a proper return. On June 19, 2006 defendant served said order to compel Lagrange Town Court to answer. Lagrange Town Court still has not filed an answer in compliance with the requirements of NY CPL 460.10(3). 4

On October 12, 2006, the Appellate Term denied Appellant s motion for Summary Reversal. However, on the Court s own motion, the allegations in the affidavit of errors were deemed to be admitted for purposed of the appeal per People v Feldes (1989) 73 NY2d 661). FIRST QUESTION PRESENTED Whether Appellant is entitled to Reversal because, being that the allegations in the affidavit of errors are deemed to be admitted for purposes of the appeal, the Appellant was denied his constitutional rights. STATEMENT OF FACTS In the Appellant s Affidavit of Errors, Dated November 2, 2005, Appellant alleged that The Trial Court erred in finding the defendant guilty in that the defendant was denied his right to a fair trial and to due process including a denial of defendant's 6th and 14th Amendments right to confront his accuser. On this Court s own motion, the allegations in the affidavit of errors have been deemed to be admitted for purposes of the appeal as per Feldes, (Ibid.) It is established as a matter of law that the defendant was denied his right to a fair trial and to due process including a denial of defendant's 6th and 14th Amendments right to confront his accuser. ARGUMENT 5

Due Process rights under the US Constitution as well as the 6th amendment right to confront one s accuser (applied to the states through the 14th Amendment (see Douglas V. Alabama (1965) 380 U.S. 415)) are fundamental rights guaranteed to all defendants in criminal matters in every jurisdiction in the United States of America. Regarding the right to confront one s accuser, the US Supreme Court held in Delaware v. Van Arsdall (475 U.S. 673 (1986)): While the trial court's denial of respondent's opportunity to impeach the prosecution witness for bias violated respondent's rights under the Confrontation Clause, such ruling is subject to harmless-error analysis under Chapman v. California (386 U.S. 18 (1967)). The correct inquiry is whether, assuming that the damaging potential of the crossexamination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a number of factors, including the importance of the witness' testimony, whether the testimony was cumulative, the presence or absence of corroborating or contradictory testimony on material points, the extent of cross-examination otherwise permitted, and the overall strength of the prosecution's case. (Delaware v. Van Arsdall p.681-684). In order to find that the errors of the Trial Court were harmless errors, this reviewing court must say that the error was harmless beyond a reasonable doubt In the case at bar, because a proper answer and a return was never filed by the Trial Court and nor was a proper record of the minutes of the trial ever compiled, is it is impossible for the reviewing court [to] say that the error was harmless beyond a reasonable doubt (Ibid.). In other words, because the 6

reviewing court (the Appellate Term) in this case does not have the minutes or record to be able to establish that the error was harmless beyond a reasonable doubt, there is in fact a reasonable doubt of harmless error and thus it must be reversible error. It is therefore established that Appellant was denied his Due Process rights under the US Constitution as well as his right to confront his accuser under the 6th amendment - applied to the states through the 14th Amendment. Thus, the Court is mandated to reverse the Appellant s conviction. SECOND QUESTION PRESENTED Whether Appellant is entitled to automatic Reversal upon a showing that an adequate record for review is not available. STATEMENT OF FACTS The Trial court has never filed a proper answer or return in this case, nor has a record in this case has never been established. ARGUMENT It has been held that It is the duty of the Justice presiding in a local criminal court to set forth or summarize evidence, facts or occurrences in or adduced at the proceedings resulting in judgment, sentence, or order, which constitute the factual foundation for the contentions alleged in the affidavit of 7

errors. (CPL 460.10 [3][d].) (People v. Dewitt 171 Misc.2d 622 (1996)) Justice Spiegel did not do so, even when mandated by statute to do so and when ordered by this Court to do so on May 26, 2006. It has also been clearly held that upon a showing that an adequate record for review is not available that a defendant is entitled to automatic reversal (Feldes, at 665 citing People v Glass (1977) 43 N.Y.2d 283, 285 in the dissenting opinion). In the case at bar, the record is clearly unavailable and the Appellant has used all due diligence to avail himself of the record.. Lagrange Town Justice Spiegel who heard the case has left the bench and is no longer a Town Justice in Lagrange. Justice Spiegel never filed any return or answer in this matter. Any attempt in filing a return and answer was made by Justice Spiegel s successor Justice Greller, who did not hear the case and cannot possibly assist in assembling the minutes of the case. In this case, any meaningful reconstruction of the minutes of the trial would require participation of the Town Justice who presided over the trial. The District Attorney present; due to the fact that their offices have opted out of prosecution of traffic matters. On October 25, 2006, in a last ditch effort to compile the record, Appellant s counsel sent letters to not only Justice Spiegel, but also to the court and to the prosecutor Trooper Cogan, asking for their assistance in compiling the minutes of the trial. (see exhibits A, B and C ) As of the date of this brief, Appellant has not received any response from the aforementioned parties. Thus, Appellant is entitled to automatic reversal because an adequate record for review is not available. 8

THIRD QUESTION PRESENTED Whether Appellant is entitled to reversal because the State s witness was allowed to testify in a narrative form. STATEMENT OF FACTS As noted, the District Attorney was not present at this trial. Thus, State Trooper Cogan served as the prosecutor and sole witness for the People. At the commencement of the People s case, defense counsel objected to the form of testimony as being narrative. Nonetheless, the Trial Court judge allowed Trooper Cogan to proceed to testify in narrative form. ARGUMENT The court has held that We think that when counsel objects to narration by a witness he has the right to have the testimony elicited by question and answer, in order that he may protect his client by objection rather than by a motion to strike out. Altkrug v. Horowitz (1906) 111 A.D. 420 [421-422]; 97 N.Y.S. 716 The remedy in Altkrug was reversal. Altkrug therefore mandates reversal. 9

Conclusion For the foregoing reasons the Appellant respectfully asks that conviction be reversed. Respectfully submitted, Dated: November 6, 2006 Matisyahu Wolfberg Attorney for the Appellant 19 Koritz Way, Suite 212 Spring Valley, New York 12037 (845) 362-3234 10