advice defense in New York

1984The court directed that “when such questioning begins, the Trial Judge should call a bench conference to ascertain whether the witness refrained from speaking under the advice of defense counsel, for in such a case examination on the issue of the witness’ postconsultation silence would be improper and could well result in a mistrial (cf. People v Conrow, 200 NY 356, 367 , supra)” (People v Dawson, supra, p 323).

1980Finally, when such questioning begins, the Trial Judge should call a bench conference to ascertain whether the witness refrained from speaking under the advice of defense counsel, for in such a case examination on the issue of the witness’ postconsultation silence would be improper and could well result in a mistrial (cf. People v Conrow, 200 NY 356, 367 , supra).

2019Inasmuch as defendant never requested such a bench conference, we conclude that there was no error ( see People v Hall , 52 AD3d 734 , 735 [2d Dept 2008], lv denied 11 NY3d 832 [2008]).

2019Additionally, there is nothing in the record indicating that the witnesses refrained from speaking under the advice of defense counsel ( see People v Felipe , 66 AD3d 919, 920 [2d Dept 2009], lv denied 14 NY3d 800 [2010]).

2019Defendant's further contention that the prosecutor failed to act in "good faith" under Dawson is also without merit ( id. , 50 NY2d at 323 ).

2019Inasmuch as defendant never requested such a bench conference, we conclude that there was no error ( see People v Hall , 52 AD3d 734 , 735 [2d Dept 2008], lv denied 11 NY3d 832 [2008]).

2015The Appellate Division, in a 3-1 decision, modified the order of Supreme Court by dismissing the advice claim, and otherwise affirmed, but limited the due diligence claim to a factual issue related to the highlights document ( 115 AD3d 228 [2014]).

2012To quote again Judge Breitel’s opinion in Nixon: “[I]f independent and good advice in the interest of the defendant is the goal, it is more important that he consult with competent counsel than that a harried, calendar-conscious Judge be the one to perform the function in displacement of the lawyer” ( 21 NY2d at 354 ).

2008Furthermore, the defendant’s failure to request a bench conference to determine whether the alibi witness refrained from coming forward at the advice of defense counsel relieved the trial court of any obligation to conduct one (see People v Kelly, 209 AD2d 436, 439 [1994]; People v Koleskor, 131 AD2d 879 [1987]).

1998While the court, as requested by defendant, should have repeated, in its main charge, its instruction that an indictment is not evidence, reversal is not warranted because this charge was given during jury selection, and the main charge, read as a whole, conveyed the same principle (People v Vega, 238 AD2d 278 , lv denied 90 NY2d 911 ).

1987We note that the defendant failed to preserve for our review his contention that the prosecutor improperly cross-examined his alibi witness as to his failure to come forward with exculpatory information (see, People v Thomas, 128 AD2d 743 ).

1982Conyers acknowledged that prior silence concerning exculpatory information “may be attributable to a variety of innocent circumstances that are completely unrelated to the truth or falsity of” testimony ( 52 NY2d, at p 458 ), that jurors, however, are not “necessarily sensitive to the wide variety of alternative explanations” (id., at p 459) and that the hazard is greatest for a defendant that an unjustified inference will be drawn and, therefore, the “utmost caution * * * [must be] exercised in order to ensure that the defendant is not deprived of a fair trial” (id., at p 459, n 2).

1980In a related vein, the District Attorney’s obligation to rise above mere partisan advocacy and to conduct the trial in a manner consistent with the defendant’s due process rights cannot be overlooked (see People v Steinhardt, 9 NY2d 267 ; People v Fielding, 158 NY 542 ).

1980In a related vein, the District Attorney’s obligation to rise above mere partisan advocacy and to conduct the trial in a manner consistent with the defendant’s due process rights cannot be overlooked (see People v Steinhardt, 9 NY2d 267 ; People v Fielding, 158 NY 542 ).

1976In People v Einhorn ( 35 NY2d 948 ) the State Court of Appeals outlined a procedure whereby a Grand Jury witness who raises an objection to questioning on the basis that the information was obtained as the result of illegal wiretapping, may request to be brought before the court and seek the advice or instruction of the court.

1976The Presiding Justice in his inquiry, may "interrogate the prosecutor under oath, either in camera, or in open court, whether or not the basis for the questioning of the witness was founded on the illegally obtained wiretap evidence” (People v Einhorn, supra, p 950 ).

1968He urges that, within the meaning of Miranda v. Arizona ( 384 U. S. 436 ), his interrogation by police officers took place while he was in custody or otherwise deprived of his freedom of action in a significant way; that he was the target of the inquiry which was focused upon him as evidenced by the fact that a confrontation between him and a witness took place after the termination of such interrogation, intended to produce an identification; that he was led to believe, as a reasonable person, that he was being deprived or restricted of his freedom of action or movement; that, accordingly, th

1966As such, these incriminating answers were admissible without the advice or warning mandated by Dorado, supra. (See People v. Jacobson, 63 Cal. 2d 319 [casual questioning in home and police car]; People v. Cotter, 63 Cal. 2d 386 [routine questioning at scene and in police car]; Ballard v. Superior Court, 410 P. 2d 838 [Cal.] [in home by means of listening device]; People v. Treloar, 410 P. 2d 620 [Cal.] [routine questioning in police car].) Other California cases discuss the issue but find the interrogation “accusatory.” (People v. Bilderback, 62 Cal. 2d 757 [single question but in police stati

1966As such, these incriminating answers were admissible without the advice or warning mandated by Dorado, supra. (See People v. Jacobson, 63 Cal. 2d 319 [casual questioning in home and police car]; People v. Cotter, 63 Cal. 2d 386 [routine questioning at scene and in police car]; Ballard v. Superior Court, 410 P. 2d 838 [Cal.] [in home by means of listening device]; People v. Treloar, 410 P. 2d 620 [Cal.] [routine questioning in police car].) Other California cases discuss the issue but find the interrogation “accusatory.” (People v. Bilderback, 62 Cal. 2d 757 [single question but in police stati

1966As such, these incriminating answers were admissible without the advice or warning mandated by Dorado, supra. (See People v. Jacobson, 63 Cal. 2d 319 [casual questioning in home and police car]; People v. Cotter, 63 Cal. 2d 386 [routine questioning at scene and in police car]; Ballard v. Superior Court, 410 P. 2d 838 [Cal.] [in home by means of listening device]; People v. Treloar, 410 P. 2d 620 [Cal.] [routine questioning in police car].) Other California cases discuss the issue but find the interrogation “accusatory.” (People v. Bilderback, 62 Cal. 2d 757 [single question but in police stati

1966As such, these incriminating answers were admissible without the advice or warning mandated by Dorado, supra. (See People v. Jacobson, 63 Cal. 2d 319 [casual questioning in home and police car]; People v. Cotter, 63 Cal. 2d 386 [routine questioning at scene and in police car]; Ballard v. Superior Court, 410 P. 2d 838 [Cal.] [in home by means of listening device]; People v. Treloar, 410 P. 2d 620 [Cal.] [routine questioning in police car].) Other California cases discuss the issue but find the interrogation “accusatory.” (People v. Bilderback, 62 Cal. 2d 757 [single question but in police stati

1966As such, these incriminating answers were admissible without the advice or warning mandated by Dorado, supra. (See People v. Jacobson, 63 Cal. 2d 319 [casual questioning in home and police car]; People v. Cotter, 63 Cal. 2d 386 [routine questioning at scene and in police car]; Ballard v. Superior Court, 410 P. 2d 838 [Cal.] [in home by means of listening device]; People v. Treloar, 410 P. 2d 620 [Cal.] [routine questioning in police car].) Other California cases discuss the issue but find the interrogation “accusatory.” (People v. Bilderback, 62 Cal. 2d 757 [single question but in police stati

1966As such, these incriminating answers were admissible without the advice or warning mandated by Dorado, supra. (See People v. Jacobson, 63 Cal. 2d 319 [casual questioning in home and police car]; People v. Cotter, 63 Cal. 2d 386 [routine questioning at scene and in police car]; Ballard v. Superior Court, 410 P. 2d 838 [Cal.] [in home by means of listening device]; People v. Treloar, 410 P. 2d 620 [Cal.] [routine questioning in police car].) Other California cases discuss the issue but find the interrogation “accusatory.” (People v. Bilderback, 62 Cal. 2d 757 [single question but in police stati

1966As such, these incriminating answers were admissible without the advice or warning mandated by Dorado, supra. (See People v. Jacobson, 63 Cal. 2d 319 [casual questioning in home and police car]; People v. Cotter, 63 Cal. 2d 386 [routine questioning at scene and in police car]; Ballard v. Superior Court, 410 P. 2d 838 [Cal.] [in home by means of listening device]; People v. Treloar, 410 P. 2d 620 [Cal.] [routine questioning in police car].) Other California cases discuss the issue but find the interrogation “accusatory.” (People v. Bilderback, 62 Cal. 2d 757 [single question but in police stati

1966As such, these incriminating answers were admissible without the advice or warning mandated by Dorado, supra. (See People v. Jacobson, 63 Cal. 2d 319 [casual questioning in home and police car]; People v. Cotter, 63 Cal. 2d 386 [routine questioning at scene and in police car]; Ballard v. Superior Court, 410 P. 2d 838 [Cal.] [in home by means of listening device]; People v. Treloar, 410 P. 2d 620 [Cal.] [routine questioning in police car].) Other California cases discuss the issue but find the interrogation “accusatory.” (People v. Bilderback, 62 Cal. 2d 757 [single question but in police stati