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)

Conviction under NY Penal Law 265.01 does not require defendant to know that particular knife fits statutory definition of “gravity knife”

May 4, 2016 by Marshall A. Mintz · Leave a Comment 

In New York, a person is guilty of criminal possession of a weapon in the fourth degree [NY Penal Law 265.01(1)] when : “[h]e or she possesses any . . . gravity knife.” A “gravity knife” is defined as “any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.”

In People v. Parrilla, the Court of Appeals ruled that the statutory language only required a person’s knowing possession of a knife – not that the knife met the definition of “gravity knife” under the statute.