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Two Dissenting Justices Found Defendant’s Sentence Excessive Under the Facts

The First Department, over a two-justice dissent, found that the defendant’s application for resentencing under the Drug Reform Act was properly denied.  The decision is notable for the dissents, which forcefully argued defendant’s sentence was harsh and excessive in light of all the facts. People v Lovett, 2014 NY Slip Op 02329, 1st Dept 4-3-14

 

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REMOVING A CRATE FROM A FLATBED TRUCK WAS AN ELEVATION-RELATED RISK COVERED BY LABOR LAW 240(1).
DEFENDANT WAS HANDCUFFED WHEN THE POLICE SEARCHED A BAG ON THE FLOOR NEAR HIM, THE KNIFE IN THE BAG SHOULD HAVE BEEN SUPPRESSED, JUDGE PROPERLY PROCEEDED TO TRIAL WITHOUT A COMPETENCY EXAM ORDERED BY ANOTHER JUDGE AFTER DEFENDANT REFUSED TO BE EXAMINED (FIRST DEPT).
AMUSEMENT TAX AND CABARET TAX PROVISIONS ARE NOT UNCONSTITUTIONALLY APPLIED TO AN ADULT ENTERTAINMENT CLUB; TAX EXEMPTIONS FOR CERTAIN TYPES OF DRAMATIC OR MUSICAL ART PERFORMANCES ARE PROPERLY NOT AVAILABLE TO THE CLUB.
Failure to Warn Defendant that Failure to Appear Would Result in a Harsher Sentence Required Vacation of the Harsher Sentence
FALL FROM SCAFFOLD WITH NO SIDE RAILS ENTITLED PLAINTIFF TO SUMMARY JUDGMENT, HEARSAY ALONE WILL NOT DEFEAT SUMMARY JUDGMENT MOTION, UNSIGNED DEPOSITION TRANSCRIPT PROPERLY CONSIDERED.
ALTHOUGH THE EVIDENCE WAS FOUND AS A RESULT OF A SUPPRESSED STATEMENT, THE EVIDENCE WAS ADMISSIBLE UNDER THE INEVITABLE DISCOVERY DOCTRINE.
PHYSICAL INCAPACITY CAN BE A REASONABLE EXCUSE FOR FAILING TO TIMELY FILE A NOTICE OF CLAIM, BUT THE PERIOD OF DISABILITY DOES NOT TOLL THE ONE YEAR AND 90 DAY PERIOD FOR FILING A MOTION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM (FIRST DEPT).
TWO TO THREE FOOT FALL OF HEAVY STEEL PLATE WHICH WAS BEING HOISTED IS COVERED UNDER LABOR LAW 240 (1), HEIGHT DIFFERENTIAL NOT DE MINIMUS (FIRST DEPT).

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