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Criminal Bench Trial Reversed because Judge exercised "prerogative" to not hear Closing Ar

No Closings New Trial - B misdemeanor offense and related charges, the trial court announced it would exercise its "prerogative" not to hear closing arguments.

Criminal defense attorneys are sometimes placed in the untenable position of being the only person able to advocate for a client that both the state (by a prosecutor) and the judge want to put in jail. While there is a presumption of innocence, people are human and prone to feelings, prejudices, social mores, values and ideas about the way of the world. Here, "At the conclusion of defendant's bench trial on a class B misdemeanor offense and related charges, the trial court announced it would exercise its 'prerogative' not to hear closing arguments." This prevented the defense attorney from, among other things, objecting or making a record. The case is appealed to the highest Court in New York and reversed.

This non-jury trial resulted in jail time: "Even though the court previously granted the parties permission to deliver summations, it rescinded that ruling and issued a specific ruling denying defendant the opportunity for closing remarks." What occurred, immediate jail time: "The court immediately rendered a verdict, finding defendant guilty of attempted criminal possession of a controlled substance in the seventh degree, and sentenced defendant to 90 days in jail." We see these cases more often (criminal possession in the seventh degree), when individuals are suffering from addiction or simply were caught with a pill or two that was "given to them by a friend" for some ailment when that person needed to go to a doctor for a prescription.

Without a record, the appellate court rejected "defendant's claim that the denial of summation violated his Sixth Amendment right to counsel under Herring v New York (422 US 853 [1975]) as unpreserved (53 Misc 3d 153(A), 2016 NY Slip Op 51727(U), *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016])."

The Court of Appeals holds that "The trial court, in specifically ruling that defendant's permission to deliver a summation was rescinded and concomitantly rendering a verdict, deprived defense counsel of a practical ability to timely and meaningfully object to the court's ruling of law (see People v [*2]Carter, 63 NY2d 530, 533 [1984]; People v Rosen, 81 NY2d 237, 245 [1993]; People v Conceicao, 26 NY3d 375, 382 [2015])." In no uncertain terms, the prerogative of the judge violated the constitutional rights of the accused.

Drug possession cases and certain B Misdemeanor cases can result in jail time. Here, criminal possession in the seventh degree, but other cases involving marital disputes, order of protection violations, harassment, etc., have similar consequences. The Court here makes clear that this is no small error, indeed under Supreme Court case Scott v Illinois, 440 US 367, 373-374 [1979] this is a violation of the right to counsel.

Clients and potential clients, hire a defense attorney who will make a record and fight for your rights. Call our Law Offices: 631-450-2515. The case is ultimately reversed after two levels of appeal, a costly endeavor to say the least. Lawyers, make your record and do not sit down when a judge is violating the fundamental rights of your client. From the case, we cannot tell what occurred between the lawyer, the judge and the client (who was sentenced to 90 days). Still, no position that a lawyer/client wish to find themselves.

Arrested, injured, facing a trial? Call the Law Offices of Cory H. Morris: 631-450-2515.

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