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Applicant Eligible for Relief Under Drug Sentencing Reform Statute Must Be Afforded a Hearing

The Third Department noted that an applicant who is eligible of for a relief under the “drug sentencing reform” statute, CPL 440.46, must be afforded a hearing.  People v Cain, 2014 NY Slip Op 03711, 3rd Dept 5-22-14

 

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WHERE A WITNESS STATES SHE DOES NOT RECALL MAKING A STATEMENT, IT IS NECESSARY TO CALL SOMEONE WHO HEARD THE WITNESS MAKE THE STATEMENT TO LAY A FOUNDATION FOR ITS ADMISSION AS A PRIOR INCONSISTENT STATEMENT.
THE DISTRICT ATTORNEY SHOULD NOT HAVE BEEN DISQUALIFIED FROM PROSECUTING THE DEFENDANT FOR ALLEGED SEX OFFENSES ON THE GROUND THAT, AS A FAMILY COURT JUDGE, THE DISTRICT ATTORNEY HAD PRESIDED OVER FAMILY COURT PROCEEDINGS INVOLVING THE DEFENDANT AND THE ALLEGED VICTIM OF THE CHARGED SEX OFFENSES (THIRD DEPT).
PLAINTIFF, WHO IS FIVE FOOT SEVEN, WAS INJURED WHEN A SIX FOOT HIGH STACK OF SCAFFOLDS PARTIALLY FELL ON HIM, THE HEIGHT DIFFERENTIAL WAS DEEMED DE MINIMUS, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION WAS PROPERLY GRANTED (THIRD DEPT).
IN THIS TRAFFIC ACCIDENT CASE, EVIDENCE DEFENDANT FAILED TO SEE THE CAR HE COLLIDED WITH AND FAILED TO TIMELY BRAKE IS NOT LEGALLY SUFFICIENT FOR A CRIMINALLLY NEGLIGENT HOMICIDE CONVICTION; THE LEGAL INSUFFICIENCY ARGUMENT WAS PRESERVED BY A MOTION TO DISMISS BROUGHT AT THE CLOSE OF THE PEOPLE’S CASE AND RULED ON AFTER THE DEFENDANT’S CASE; THE “LEGALLY INSUFFICIENT” VERSUS “AGAINST THE WEIGHT OF THE EVIDENCE” STANDARDS EXPLAINED (THIRD DEPT).
QUESTIONS OF FACT ABOUT THE TYPE OF STICKS AND BALLS USED IN THE LACROSSE GAME AND WHETHER THE FAILURE TO PROVIDE GOGGLES WAS THE PROXIMATE CAUSE OF PLAINTIFF-STUDENT’S EYE INJURY (THIRD DEPT).
Claimant Who Sold Educational Materials Was an Employee
THEORY THAT DEFENDANT VETERINARY CLINIC WAS LIABLE IN NEGLIGENCE FOR A DOG BITE WHICH OCCURRED IN THE CLINIC WAITING ROOM REJECTED, ONLY A STRICT LIABILITY THEORY COULD APPLY AND PLAINTIFF CONCEDED RELIEF WAS NOT AVAILABLE PURSUANT TO STRICT LIABILITY (THIRD DEPT).
THE WARRANTLESS SEARCHES OF CLOSED CONTAINERS WERE NOT JUSTIFIED BY THE ITEMS BEING IN DEFENDANT’S “GRABBABLE” AREA OR BY “EXIGENT CIRCUMSTANCES;” CONVICTION REVERSED (THIRD DEPT).

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