CRIMINAL LAW ACADEMY Materials

150 Pages·2011·1.7 MB·English

CRIMINAL LAW ACADEMY
2011

DAY TWO

COUNTY COURT:
PRACTICE AND PROCEDURES

SATURDAY, October 1, 2011

9:00 A.M. – 4:30 P.M.

Mohawk Valley Community College
1101 Sherman Drive
Utica, NY 13501

IT Room 225

Day Two Coordinator: Frank J. Nebush, Jr., Esq.
Oneida County Public Defender
Criminal Division

Sponsored by:
Oneida County Bar Association
Oneida County Supplemental Assigned Counsel Program
Oneida County District Attorney’s Office
Oneida County Public Defender, Criminal Division
New York State Defenders Association, Inc.
The Criminal Law Academy

The 2011 Criminal Law Academy was designed to provide fundamental knowledge of the every day
practice and procedures of local and superior criminal courts to newly-admitted attorneys and those attorneys
who occasionally practice criminal law. The faculty is comprised of experienced criminal law practitioners from
both the defense and prosecution sides of the criminal bar. The two day course provides 14 CLE credits – 6
Skills, 6 Professional Practice and 2 Ethics.

Day One on Saturday, September 24 will cover Local Criminal Court practice dealing with
th
misdemeanors and violations from arraignment through sentencing and felony cases up to and including the
preliminary hearing.

Day Two on Saturday, October 1st begins with the Grand Jury and runs through sentencing and
appellate practice.

Two important areas of criminal practice, although covered at the Academy, will be supplemented by
separate Criminal Track Programs on October 12th and November 5th.

Joanne Macri, Esq., Director of the New York State Defenders Association, Immigration Project will
join us in IT Room 225 at MVCC from 9:00 a.m. to 12 p.m. on Saturday, October 12th to discuss the
criminal practitioner’s obligations after Padilla v. Kentucky. Joanne is one of the preeminent experts in
the area of immigration and criminal law. She will be joined in her presentation by Carla Hengerer,
Deputy Chief Counsel, Immigration and Customs Enforcement, Department of Homeland Security in
Buffalo, New York.

Onondaga County First Chief Assistant District Attorney Dominic Trunfio is returning by popular
demand on Saturday, November 5th from 9 a.m. – 12 p.m. to continue his lecture on TRIAL
PRACTICE.

Both programs are available for free to members of the Oneida County Bar Association Sempass
holders. Attorneys admitted in New York and participating in assigned counsel programs or members of
public defender, district attorney or other government offices are welcome to register for Criminal Track
Programs for a $25 per program fee. Registration for Criminal Track Programs can be made by calling Diane
Davis at the Oneida County Bar Association office at [phone].

The Oneida County Bar Association offers a wide range of CLE programs throughout the year. A full
calendar of programs is available at their website www.oneidacountybar.org. Also, the Oneida County Public
Defender, Criminal Division makes several of the materials from our Criminal Track Programs available at their
website http://www.ocgov.net/oneida/pdcriminal/training.

The members of the Criminal Track Program Committee and the faculty of the 2011 Criminal Law
Academy welcome you and hope you find the Academy informative and valuable to your practice. As always,
we welcome your comments and suggestions for future programs.
PROGRAM SCHEDULE

DAY ONE – SATURDAY, SEPTEMBER 24, 2011

LOCAL CRIMINAL COURT PRACTICE:
DEALING WITH VIOLATIONS, MISDEMEANORS AND FELONIES

8:30 – 9:00 a.m. Registration

9:00 – 11:00 a.m. The Client’s First Court Appearance
Michele E. DeTraglia, Esq., Utica, NY
Adam P. Tyksinski, Esq., Assistant Oneida County Public Defender
Focusing on the first court appearance, this session will discuss the initial client interview; procedural
issues; sufficiency of complaints and informations; motions; speedy trial issues; adjournment; pleas; potential
issues involving holds, release, release under supervision, and bail and bond arguments.

11:00 – 11:15 a.m. BREAK

11:15 – 12:15 p.m. The Client’s Second Court Appearance
Hon. John S. Balzano, Utica City Court Judge
Tina L. Hartwell, Esq., First Assistant Oneida County Public Defender
Pre-trial negotiations, strategies and fact-finding; plea negotiations and the implications of plea offers;
discussing the plea offer with the client; the plea agreement, alternative sentencing options (drug court, mental
health court, domestic violence court, etc.) and sentencing.

12:15 – 1:15 p.m. LUNCH

1:15 – 2:15 p.m. Preliminary Hearings
Rebecca Wittman, Esq., Utica, NY
Preliminary hearings on a felony charge in local criminal court – protocols, procedures, strategies, evidentiary
rules and fact-finding.

2:15 – 3:00 p.m. Conducting a Trial in Local Criminal Court
David Longretta, Esq., Utica, NY
The final session will bring together all of the previous sessions and relate them to actually trying the
violation or misdemeanor case in Local Criminal Court including evidentiary rules, jury selection, trial motions,
trial practice and procedure, verdicts, and sentencing procedure and strategies.

3:00 – 3:15 p.m. BREAK

3:15 – 4:30 p.m. Conducting a Trial in Local Criminal Court (Continued)
DAY TWO – SATURDAY, OCTOBER 1, 2011

COUNTY COURT: PRACTICE AND PROCEDURES

8:30 – 9:00 a.m. Registration

9:00 – 10:15 a.m. Grand Jury Practice and Indictments
(1.5 credits: Professional Practice)
Bernard L. Hyman, Jr., Esq., Assistant Oneida County District Attorney
Grand jury practice, procedure, composition, use of testimony at trial, notice to defendant and defendant’s
right to testify, witnesses, requests to appear, defense counsel’s role, evidentiary standards, voting, defense
motions, removal of grand jurors, resubmission and waivers. Indictments –description and function, arraignment,
sufficiency and defectiveness, notice of readiness, bills of particular, waiver of indictment and superior court
informations, amendment, multiplicitous and duplicitous pleading, speedy trial issues, juvenile offenders, effect of
charges superseded by indictment, sealed indictments, CPL §710.30 notices and other notices attached to
indictments.

10:15 – 11:05 a.m. Ethics for the Criminal Law Practitioner (1 credit: Ethics)
Kimberly M. Zimmer, Esq., Syracuse, NY
Conflicts of interest, multiple defendants, attorney-client privilege, ineffective assistance of counsel, privileged
communications, client perjury, handling fruits of a crime ,communicating with co-defendants, neglecting
representation, district attorney’s decision to charge, disclosing Brady material, illusory statements of readiness,
advocate-witness rule, disqualification of a district attorney, ex parte communications, misconduct at trial, contact with
jurors, media statements, misuse of subpoenas and unethical use of social networking.

11:05 – 11:20 a.m. BREAK

11:20 – 12:35 p.m. Motion Practice (1.5 Credits: Professional Practice)
Frank J. Nebush, Jr., Esq., Oneida County Public Defender, Criminal Division
Pretrial motions, the omnibus pretrial motion, motions in limine, trial motions and post trial motions -
challenging sufficiency of the accusatory instrument, consolidation, review of grand jury minutes, Wade and Huntley
hearings, change of venue, removal to Family Court, audibility, speedy trial, motions to dismiss, interests of justice,
time factors, CPL 730 motions and fitness to proceed, Sandoval, and suppression.

12:35 – 1:15 p.m. LUNCH

1:15 – 3:00 p.m. Trial Practice
(2 Credits: Skills)
Kurt D. Schultz, Esq., Assistant Oneida County District Attorney
Mark Wolber, Esq., Utica, NY
Voir dire, opening and closing statements by the prosecution and defense, direct and cross-examination,
marking and introducing evidence, the prosecutor’s burden and responsibilities and trial motions.

3:00 – 3:10 p.m. BREAK

3:10 – 4:00 p.m. Sentencing and Appeals
(1 Credit: Skills)
Mark C. Curley, Esq., Utica, NY
Sentencing - indeterminate and determinate sentences, minimum and maximum sentences, alternative
sentencing options, judicial diversion, probationary and split sentences, violation of probation and parole.
Appeals – Preparing and filing the Notice of Appeal, the practice and procedures required to take an appeal from a
town, village, county court or from the Appellate Division.
SPEAKERS

Hon. John S. Balzano is the Chief Judge of Utica City Court. A graduate of Utica College and
Suffolk University Law School, he presides over the Utica Drug Court. Judge Balzano served as
Oneida County Attorney from 1993-1996 and was a Law Clerk for the Hon. John P. Balio in
Oneida County Family Court and also a Law Clerk for the Hon. Barry M. Donalty, Acting
Supreme Court Justice. In 2001 he was designated the Utica Drug Court Judge and in 2004 he
was also designated the Supervising Judge of the Fifth Judicial District City Court Judges. The
Judge has served on the board of directors of a number of charitable organizations, was a
member of the Utica Board of Education and served on the board of directors of the Oneida
County Bar Association.

Mark C. Curley, Esq., Mark C. Curley, Esq., a Utica native, graduated from SUNYIT in 1982
and from the University of Texas School of Law in 2002 where he was awarded the Tom C. Clark
Fellows Scholarship, the Dean’s Achievement Award in Constitutional Law and a Texas Law
Fellowship. He served his Texas Law Fellowship as a Law Clerk for the Oneida Indian Nation
Legal Department. After graduation, Mark was a staff attorney for the New Mexico Office of the
Public Defender in Albuquerque, New Mexico, Southern Tier Legal Services in Bath, New York
and the Lewis County Public Defender’s Office. He was appointed an Assistant Oneida County
Public Defender for the Criminal Division in 2005 where he became a First Assistant Public
Defender, Violent Crimes Section and then Chief Appellate Counsel. He is presently in private
practice with John Leonard in Rome, NY specializing in criminal law and DWI.

Michele E. DeTraglia, Esq. is a 2005 graduate of Boston College School of Law, and a 2002
graduate of Holy Cross. She is in general practice in Utica with her father, Gustave J.
DeTraglia, Jr. and her brother, Gustave J. DeTraglia III. Besides criminal defense, she handles
many different kinds of civil matters, including matrimonial and family law, property loss,
personal injury, and medical malpractice. She is admitted to practice in all courts of the State of
New York and in Federal Court for the Northern District of New York.

Tina L. Hartwell, Esq., First Assistant Public Defender, Oneida County Public Defender,
Criminal Division, Major Crimes Section. Tina graduated from Syracuse University in 1991
with dual Bachelor of Science degrees in Political Science and Speech Communication and
earned her Masters of Arts in Speech Communication from Syracuse in 1993. In 1999 she
obtained her Juris Doctor degree from Albany Law School. In 2001, Ms. Hartwell was appointed
an Assistant Oneida County Public Defender, Criminal Division. She is presently a First
Assistant Public Defender assigned to the Major Crimes Section and the Utica Drug Treatment
Court as a Drug Court Specialist. She is a member of the New York State Bar Association, the
New York State Defenders Association and the National Association for Drug Court
Professionals.

Bernard L. Hyman, Jr., Esq., Assistant Oneida County District Attorney. Bernie heads up the
Economic Crime Unit. He has been a member of the DA’s office since 1999. Prior to that, he was
an associate at Felt Evans, LLP in Clinton, New York. He is a graduate of Syracuse University of
Law School (1997) and Utica College (1994). Bernie also serves on the Criminal Law Academy
and Criminal Track Development Committee.
David A. Longeretta, Esq., Longeretta Law Firm in Utica majored in political science and
English at Niagara University and is a 1993 graduate of the Syracuse University College of Law.
Dave has focused his practice on personal injury litigation and the defense of DWI cases. He is a
member of the National College for DWI Defense, the Oneida County Bar Association and the
New York State Bar Association.

Frank J. Nebush, Jr., Esq., Oneida County Public Defender, Criminal Division is a graduate of
Northeastern University and the New England School of Law. He has served as the Chief Public
Defender of Oneida County since 1981. During law school he was a co-founder and senior editor
of the New England Journal on Prison Law which has since become the New England Journal on
Criminal and Civil Confinement and has since been recognized as one of the nation’s top
criminal law publications and is the only journal in the country that specifically addresses civil
confinement law. Following law school he taught Constitutional and Correctional Law at
SUNYIT and was an Assistant Oneida County Attorney assigned to the Sheriff’s Department
and Family Court. In his role as legal advisor to the Sheriff, he was involved with a number of
advisory committees studying overcrowding at the county jail and alternatives to incarceration.
He also was instrumental in establishing the forensic court clinic at Utica City Court, one of the
first of its kind in New York State. In 1988, the founders of the clinic were invited to attend the
First World Congress of Psychiatrists and Psychologists in Paris, France and give a presentation
on the clinic. Mr. Nebush was chosen by the delegation to deliver the presentation at the
conference. In 2003, in conjunction with Prof. Marci Hamilton, he organized the First National
Conference on Clergy Abuse for plaintiffs’ attorneys and survivors of clergy abuse at the
Benjamin N. Cardozo School of Law. Throughout his career as the Chief Public Defender, he has
either been the lead attorney or supervised the defense of numerous high profile homicide cases
in Oneida County, including several homicides involving clients suffering from a mental disease
or defect.

Kurt D. Schultz, Sr., Esq., Assistant Oneida County District Attorney, is a 1980 graduate of
SUNY Albany and received his Juris Doctor from the St. Louis University School of Law in 1984.
Kurt served as an Assistant Public Defender for the State of Missouri from 1984 until 1985 when
he became an Assistant Circuit Attorney in St. Louis handing violent crimes. In 1987, Mr.
Schultz was appointed an Assistant United States Attorney assigned to the Criminal Division for
the Eastern District of Missouri. From 1989 to 2005, Kurt was in private practice in St. Louis
where he undertook extensive representation of the members of the St. Louis Police Officer’s
Association in addition to criminal cases in state and federal courts. Returning to New York
State, he served as an Assistant Oneida County Public Defender from 2006 until 2007 when he
accepted an appointment to his current position. In addition to his duties as an Assistant District
Attorney, he is an adjunct professor in the Criminal Justice Department at Mohawk Valley
Community College and a Certified Instructor for the State of New York Municipal Police
Training Council. Mr. Schultz is a member in good standing of the New York State and Missouri
bars.

Adam P. Tyksinski, Esq., Assistant Oneida County Public Defender, Criminal Division, Major
Crimes Section. Born and raised in Clinton, Adam Tyksinski graduated from Clinton High
School in 1997 and attended Union College where he received his Bachelors of Science in
Economics, Concentrating in Managerial Economics and Political Science in 2001. He received
his Juris Doctor in 2006 from the Thomas Jefferson School of Law. In 2009, he was appointed an
Assistant Oneida County Public Defender, City Courts Section and was promoted to the Major
Crimes Section in 2010. He is a member of the Criminal Track Committee which develops low
cost training programs for assigned counsel, public defenders, district attorneys and private
criminal law practitioners. He has lectured to the bar on the fundamentals of criminal practice
and is on the faculty and a member of the curriculum committee for the Criminal Law Academy.

Rebecca Wittman, Esq., is a graduate of New Hartford schools and a 1986 graduate of Utica
College where she majored in International Studies with a minor in International Business
Management. In 1990, she received her JD degree from the Syracuse University College of Law
where she concentrated in Estate Planning. Ms. Wittman was appointed an Assistant Oneida
County District Attorney in 1991 and served in that position until 1993 when she became a
partner in the firm of Lewis, Caldwell & Wittman, Esqs. In 1995 she established her private
practice in Utica concentrating in criminal law. Becky has handled some of the most high profile
criminal defendants in Oneida County including Toussaint Davis who was accused of shooting
New Hartford Police Officer Joseph Corr in 2006 and Wesley Molina-Cirino, accused of killing
Utica Police Officer Thomas Lindsey in 2007. In addition to her private practice, Ms. Wittman
has also served as an Assistant Madison County Public Defender since 1995.

Mark A. Wolber, Esq., has an Associates Degree in Engineering from Mohawk Valley
Community College and graduated summa cum laude from Utica College with a Bachelor of Arts
Degree in Economics. He received his Juris Doctor from Albany Law School and was admitted to
the practice of law in New York in 1977. Mark has been an adjunct instructor at MVCC and
adjunct professor of law at Utica College. From 1978 until 1990, he served as the Law Clerk for
Oneida County Family Court Judge Anthony K. Pomilio. Mr. Wolber is the CLE Coordinator for
the Oneida County Bar Association and serves on the Criminal Law Academy and Criminal
Track Development Committee. He is presently a solo practitioner with offices in New Hartford.

Kimberly M. Zimmer, Esq., Zimmer Law Office, Syracuse, New York. Ms. Zimmer attended
the College of the Holy Cross where she received her BA in Economics in 1985 and went on to
receive her JD from the Cornell University Law School in 1988. After law school she became a
Trial Attorney with the U.S. Department of Justice, Tax Division receiving a Special
Achievement Award for the prosecution and trial resulting from the investigation of organized
crime activities in the Eastern District of New York. In 1991 she joined the U.S. Attorney’s Office
for the Northern District of New York in Albany where in addition to her regular duties; Kim
was an Instructor for the Attorney General’s Advocacy Institute, the Youth Courts of the Capital
District, Inc., and continuing legal education for the Special Agents of the IRS Criminal
Investigation Division and the Immigration and Naturalization Service. In 1998, Ms. Zimmer
became Senior Trial Counsel for the U.S. Securities and Exchange Commission in Boston.
Moving to Syracuse in 2002, Kim joined the firm of Green & Seifter PLLC and was the head of
their Litigation Department. Establishing her own solo practice in 2008, the Zimmer Law Office
represents corporate and individual clients in federal and state court in criminal matters
including white collar, tax, narcotics and general criminal matters. Her practice includes civil
litigation in federal and state courts, professional licensing matters (attorneys and physicians)
and university disciplinary proceedings.
GRAND JURY PRACTICE AND INDICTMENTS

Bernard L. Hyman, Jr., Esq.
Assistant Oneida County Attorney
Grand Jury Practice and Indictments
Bernard L. Hyman, Jr.
Assistant District Attorney
Oneida County

I. Grand Jury Practice
A. Composition
1. CPL § 190.05
2. CPL § 190.10
3. CPL § 190.15
4. CPL § 190.20
B. Conduct of Attorney
1. CPL § 190.25
2. CPL § 190.40
3. CPL § 190.45
4. CPL § 190.50
5. CPL § 190.52
C. Requests to Appear
1. CPL § 190.50(5)(a)
D. Notice of Time to Appear
1. CPL § 190.50(5)(b)
E. Defense Witnesses
1. CPL § 190.50(6)
F. Defendant’s Right to Testify
G. Resubmission
H. Waivers
1. CPL § 190.45
I. Defense Motions
J. Removal of Grand Jurors
K. Evidentiary Standards
1. CPL § 190.55
2. CPL § 190.30
L. Voting and grand Jury Actions
1. CPL § 190.60
2. CPL § 190.65
3. CPL § 190.20

II. Indictments
A. Description and Function
1. CPL § 200.10
2. CPL § 200.50
B. Arraignment
1. CPL § 210.15
C. Sufficiency and defectiveness
D. Notice of Readiness
E. Waiver of indictment
1. CPL § 195.10
2. CPL § 195.20
3. CPL § 195.30
4. CPL § 195.40
F. Superior Court Informations
1. CPL § 195.40
2. CPL § 200.15
G. Amendment
1. CPL § 200.70
H. Multiplicitous Counts
I. Duplicitous Counts
1. CPL § 200.30
J. Speedy Trial Issues
K. Juvenille Offenders
L. Effect of Charges Superseded by Indictment
M. Sealed Indictments
N. CPL § 710.30 Notices
O. Other Notices