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Evidence of Gang Membership Properly Admitted to Show Motive for Assault

The Second Department determined evidence of defendant’s membership in a gang, including expert evidence, was properly admitted in light of defense counsel’s argument defendant had no motive to assault correction officers.  People v Murray, 2014 NY Slip Op 02957, 2nd Dept 4-30-14

 

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ALTHOUGH DEFENDANT HAD JURISDICTIONAL GROUNDS FOR VACATING THE JUDGMENT, HE WAIVED ANY JURISDICTIONAL ISSUES BY PARTICIPATING IN AN EXAMINATION UNDER OATH BEFORE MOVING TO VACATE THE JUDGMENT (SECOND DEPT).
QUESTION OF FACT WHETHER THE SALES COUNTER AND DISPLAY UNIT INSTALLED AT THE OUTSET OF THE LEASE WAS A TRADE FIXTURE WHICH COULD BE REMOVED BY THE TENANT OR A PERMANENT FIXTURE WHICH COULD NOT BE REMOVED (SECOND DEPT).
DEFFENDANT, WHO WAS 14 AT THE TIME OF THE ROBBERY, SHOULD HAVE BEEN ADJUDICATED A YOUTHFUL OFFENDER.
THE COURT SHOULD NOT HAVE CONDITIONED ITS SANDOVAL RULING ON WHETHER DEFENSE COUNSEL CROSS-EXAMINES THE PEOPLE’S WITNESSES ABOUT THEIR CRIMINAL HISTORIES (SECOND DEPT).
GENERALLY THE DEATH OF A PARTY TO AN ACTION DIVESTS THE COURT OF JURISDICTION AND REQUIRES A STAY OF THE PROCEEDINGS; HERE IN THIS FORECLOSURE ACTION HUSBAND AND WIFE OWNED THE PROPERTY AS TENANTS BY THE ENTIRETY; THE PROPERTY THEREFORE REMAINED WHOLLY OWNED BY WIFE UPON HUSBAND’S DEATH; BECAUSE PLAINTIFF WAS NOT SEEKING A DEFICIENCY JUDGMENT AGAINST HUSBAND’S ESTATE, A STAY OF THE PROCEEDINGS WAS NOT REQUIRED (SECOND DEPT).
HERE THE FAILURE TO OPPOSE THE MOTION FOR SUMMARY JUDGMENT WAS DUE TO NEGLECT WHICH DOES NOT WARRANT VACATUR; THE MOTION TO VACATE THE ORDER ENTERED ON PLAINTIFF’S DEFAULT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​
SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT IN THIS FORECLOSURE ACTION, THEREBY DEPRIVING PLAINTIFF OF AN OPPORTUNITY TO BE HEARD (SECOND DEPT).
MOTION PAPERS WERE MAILED TO DEFENDANT 20, NOT 21, DAYS BEFORE THE RETURN DATE, THEREFORE THE CROSS MOTION, SERVED SIX DAYS BEFORE THE RETURN DATE, WAS TIMELY (SECOND DEPT). ​

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