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25 Cards in this Set

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  • Back
01 Informant's Tip
In New York, when relying on an informant's tip, the state must follow the Aguilar-Spinelli test, in which it must demonstrate both:

(1) the veracity or reliability of the tipster's source +
(2) the basis of the informant's knowledge - however, if police do not know the basis of the informant's knowledge, they can satisfy this requirement based on their own personal observation which confirms sufficient details suggestive of, or directly related to, the criminal activity in question

(As a general rule, probable cause is required for a valid search warrant. Probable cause is a fair probability (~ preponderance of the evidence) that contraband or evidence of crime will be found in the area searched. In determining the existence of probable cause, it is permissible to use hearsay (that would be inadmissible at trial) and also information that was gathered from an informant's tip even if the informant is anonymous, but police need to corroborate the tip)
02 Warrantless Arrest
In New York, a warrantless arrest is valid when an officer has probable cause to believe a felony or misdemeanor has been committed by the suspect, whether in the officer's presence or otherwise. A warrantless arrest by a private person is allowed only if a felony has actually been committed by the suspect, or if a non-felony has actually been committed in the presence of the private citizen.
03 Warrant Requirements
In New York, a valid warrant must include

(1) the name of the issuing court
(2) the date of issuance
(3) the offense
(4) the name of D or a reasonable description if the name is unknown
(5) the police officer to whom the warrant is issued
(6) a statement that the arresting officer will bring D in front of the issuing court
04 Constructive Seizure
In New York, a police pursuit is considered seizure in and of itself.
05 Stop-and-Frisk
In a New York stop-and-frisk, the police may stop a suspect upon reasonable suspicion that the suspect has committed or is committing a crime. If the officer reasonably believes that he is in danger, he can frisk the suspect to determine whether the suspect is armed. The officer can make a warrantless seizure of anything reasonably believed to be a weapon that is identified during the frisk.
06 Search
In New York, searches incident to lawful arrests must be based on a suspicion that the defendant is armed. The search extends to the suspect's wingspan and to closed containers within the suspect's wingspan.

An officer can stop a moving vehicle if the officer has reason to believe the driver violated a traffic law. Once an occupant is ouside the vehicle, the police cannot search closed containers or bags inside the vehicle to look for weapons or evidence of crime

(Under common law, searches incident to lawful arrests do not require a warrant. This is true for all valid arrests except for stops based on basic traffic violations. These searches are limited to the areas where D might reach to obtain weapons or destroy evidence. For arrests made in a car, the police may search the entire passenger compartment, but not the trunk)
07 Emergency Exception Search
Under New York's emergency exception, police may conduct a warrantless search if:

(1) there are reasonable grounds to believe there is an emergency and an immediate need for assistance to protect one's life or property +
(2) the search is not primarily motivated by the intent to arrest and seize evidence +
(3) there is some reasonable basis to believe the area or place must be searched

(Under common law, warrantless searches are allowed in cases of:

(1) searches incident to lawful arrests
(2) automobile exception
(3) objects in plain view
(4) consent
(5) stop-and-frisk
(6) hot pursuit
(7) evidence is likely to disappear
(8) certain emergency situations)
08 Eavesdropping
In New York, eavesdropping means "wiretapping," mechanical overhearing of conversation," or "the interception of accessing of an electronic communication. Eavesdropping in New York is a felony unless there is consent or a properly issued eavesdropping warrant. Consent can be provided by any party to the conversation. An eavesdropping warrant is valid for 30 days; the target of the eavesdropping must be notified of the eavesdropping within 90 days after the termination of the warrant.
09 Exclusionary Rule - (No) Good Faith Exception
In New York, there is no good faith exception for search warrants. A search warrant in New York must show reliability of source and a basis of the informant's knowledge

(As a general rule, tainted evidence may be allowed in if the police officer acted reasonably and in good faith on what he believed to be a valid law, warrant or some other clerically defective instrument)
10 Voluntary Confession
In New York, the length of the interrogation and custody are factors that are to be considered when determining whether a confession was "voluntary."
11 Indelible Right to Counsel
In New York, defendants are entitled to an "indelible" right to counsel. This right attaches:

(1) when the defendant is in custody and the defendant requests counsel
(2) at arraignment - a formal reading of a criminal complaint in the presence of D to inform D of the charges against him or her. In response to arraignment, the accused is expected to enter a plea
(3) when an accusatory instrument is filed against D
(4) when there is any "significant" judicial activity
12 Waiver of Right to Counsel
In New York, if a defendant is actually and known to be represented by an attorney, waiver of the right to counsel can only be made in the presence of counsel.
13 Parent-Child Rule
New York follows the parent-child rule, which states that if police use concealment or deception to keep a parent away from a child that is being interrogated, a child's waiver is likely to be deemed invalid.
14 Right to Counsel at Lineups
In New York, there is generally no right to counsel at a pre-charge lineup. However, if a defendant is known by the police to be represented and he requests his attorney, the attorney must be present at the lineup.
15 Grand Jury
In New York, grand juries consist of 16 to 23 people; 12 votes are needed to indict.

A citizen may waive indictment for a crime if:
(1) the crime is not punishable by death or life imprisonment
(2) the district attorney consents

Grand juries may indict when the evidence establishes all elements of a crime and the evidence is legally sufficient to establish reasonable cause to believe the accused committed the crime. If a grand jury does not indict, the defendant must be released from custody and the matter may not be resubmitted for consideration.

Children under the age of 13 and physically or mentally ill people may provide testimony to a grand jury by video tape.
16 Withdrawal of Guilty Pleas
In New York, a defendant may withdraw his guilty plea before sentencing if the court so allows. The withdrawal of the plea may be to all or part of the indictment. After a sentence pursuant to a guilty plea, a defendant may appeal certain pretrial orders that denied motions for suppression of confessions, illegally obtained evidence, or identification testimony.

(As a general rule, D can withdraw a guilty plea if any form of error occurs during the consideration of or taking of the plea. Specifically, if:

(1) the plea was involuntary
(2) the court lacked jurisdiction
(3) D received ineffective assistance of counsel
(4) the prosecution failed to keep the plea bargain)
17 Plea Bargain
In New York, a court may impose a lesser sentence than the one bargained. If a court breaks an element of the plea bargain, the plea will be withdrawn. Prosecution can condition a plea on the waiver of a right to appeal either the sentence or pretrial proceedings.
18 Disclosure of Exculpatory Evidence
In New York, a conviction will be vacated if there is a reasonable possibility that the non-disclosure materially contributed to the trial result. At all stages of trial, a defendant is allowed to demand:

(1) his own statement to law enforcement
(2) tapes of wiretapped conversations
(3) relevant photos taken by police
(4) reports of physical, mental, or scientific tests
(5) specific details of the defendant's conduct that the prosecutor intends to use for impeachment purposes
19 Right to a Speedy Trial
In New York, a speedy trial is:
(1) 6 months for a felony
(2) 90 days for a Class A misdemeanor
(3) 60 days for a Class B misdemeanor
(4) 30 days for violations

The defendant is entitled to dismissal if these time periods are violated

except in a homicide case or if there is a sudden and unexpected unavailability of material evidence.
20 Right to a Jury Trial
In New York, a defendant can generally waive his right to a jury trial if the waiver is in writing, signed in court, in the presence of the judge, and with the judge's approval. In New York, a defendant's right to a jury trial can never be waived if he is being tried for first degree murder.
21 Jury Trial
(1) for felonies - 12 jurors and up to 4 alternates, at the discretion of the court. D can waive the requirement of a 12-person jury and proceed to verdict with only 11 jurors
(2) for other crimes - 6 jurors with up to 2 alternates

New York requires a unanimous vote for acquittal or conviction.
22 Challenges in Jury Selection
In New York, a juror can be challenged for cause:

(1) for lack of qualifications
(2) partiality due to state of mind
(3) six degrees of relation to the defendant
(4) if the juror was:
i. an adverse party in a previous case concerning a victim, witness, counsel, or D in the current trial
ii. if the juror is a witness in the current trial
iii. if the juror served on the grand jury
23 Ineffective Counsel
In New York, an attorney is deemed ineffective if:

(1) the attorney failed to provide meaningful representation
(2) there was at least one egregious error that prejudiced the defendant's right to a fair trial
(3) counsel failed to make a material motion that would have had a reasonable chance of succeeding, and there was no strategic explanation for the attorney's actions

Ineffective assistance is slightly easier to prove in New York.

(To show ineffective assistance of counsel, D must show:

(1) a clear and obvious deficiency of performance +
(2) the deficiency was the actual cause of the conviction)
24 New York Transaction Test
The New York Transaction Test requires that defendant be charged with all offenses resulting from a single criminal transaction unless

(1) the offenses have substantially different elements
(2) each crime contains a single element not in the other and they vindicate different harms
(3) one offense is for criminal possession and the other for criminal use of contraband
(4) each offense involves harm to a different victim

(as a general rule, multiple crimes are generally treated as the same offense if the criminal transactions are so closely linked in time place, and circumstances that they must be examined as one single instance of crime)
25 Attaching Jeopardy
In New York, a defendant has been prosecuted for an offense when he is charged by an instrument filed in any court and the action terminates in a conviction based on a guilty plea or proceeds to trial where the jury has been impaneled and sworn.

A person has not been prosecuted if the court in which he was prosecuted lacked jurisdiction, or the defendant purposefully procured prosecution to avoid prosecution for a greater offense.

(Common law rules:

(1) jury trials - at the moment of empanelling and swearing of the jury
(2) bench trials - when the first witness is wrorn in
(3) guilty pleas - when the court accepts D's plea unconditionally)