Second Circuit Vacates Conviction Because of Error Admitting Hearsay Evidence of Threats Against Witness

June 10, 2017 by Marshall A. Mintz · Leave a Comment 

Cummings was charged with conspiracy and multiple narcotics, murder, and firearm offenses. During the trial one of the government’s witnesses testified that Cummings had threatened him because he was a cooperating witness. Cummings was convicted and sentenced to 75 years’ imprisonment.

On appeal it was argued that the testimony was inadmissible hearsay because an examination of the record showed the witness actually stated he did not hear the threats personally. In United States v. Cummings, 858 F.3d 763 (2d Cir. 2017), the Second Circuit agreed and found  the evidence  so “toxic” that there was no way to conclude it did not influence the jury. As a result, the court vacated the convictions and remanded for a new trial.

The Circuit’s opinion provides an excellent analysis of the dangers of hearsay and the prejudice which can result. Please check back soon as I will be posting a more comprehensive discussion of the case.

(Disclosure: I represented Cummings on appeal but not at the initial trial)

Appellate Division Vacates Murder Conviction Based on Compelling Prejudice from Joint Trial

August 11, 2016 by Marshall A. Mintz · Leave a Comment 

In People v. Lessane, the Appellate Division, Second Department vacated the judgment and remanded for a new trial finding that Lessane suffered unreasonable prejudice from being tried jointly with a co-defendant.

Prior to trial, Lessane sought a severance because his defense was in direct conflict with that of his co-defendant. However, the court denied that motion without extensive explanation. During the trial, the co-defendant repeated argued that Lessane was guilty (which would exculpate the co-defendant). Lessane sought a mistrial numerous times, and the trial judge denied each request. The co-defendant was acquitted of all charges and Lessane was convicted of some counts.

In finding that Lessane’s trial rights were violated, the Appellate Division noted that there were “irreconcilable” conflicts between the defenses and that co-defendant’s counsel brought out damaging evidence against Lessane which the prosecutor would not have been able to present. Thus, there was such “compelling prejudice” as to render the trial Constitutionally unfair.

(Disclosure: I represented Lessane on appeal but not at the initial trial)