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People’s Failure, at a Reconstruction Hearing, to Prove Defendant Was Present for the Sandoval Hearing Required Reversal and a New Trial

The Fourth Department determined the People, at a reconstruction hearing, had failed to prove the defendant was present during a Sandoval hearing.  The conviction was therefore reversed and a new trial was ordered. People v Walker, 2014 NY Slip Op 03411, 4th Dept 5-9-14

 

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THE JUDGE DID NOT FOLLOW THE REQUIRED PROCEDURE FOR FINDING NEGLECT ON A GROUND NOT ALLEGED IN THE PETITION; TO DO SO, THE JUDGE MUST AMEND THE ALLEGATIONS IN THE PETITION TO CONFORM TO THE PROOF AND GIVE THE RESPONDENT TIME TO RESPOND TO THE AMENDED ALLEGATIONS; NEITHER WAS DONE; PETITION DISMISSED (FOURTH DEPT).
COMPLAINT DID NOT STATE CAUSES OF ACTION FOR BREACH OF CONTRACT, NEGLIGENT HIRING AND SUPERVISION OR PRIMA FACIE TORT (FOURTH DEPT).
ZONING BOARD’S FAILURE TO REFER THE AREA VARIANCE APPLICATION TO THE PLANNING BOARD AS REQUIRED BY THE GENERAL MUNICIPAL LAW WAS A JURISDICTIONAL DEFECT, DETERMINATION GRANTING THE VARIANCE VACATED (FOURTH DEPT).
RECORD SILENT ON WHETHER DEFENSE COUNSEL WAS APPRISED OF A JURY NOTE, MURDER CONVICTION REVERSED.
PURSUANT TO A US SUPREME COURT DECISION WHICH CAME DOWN AFTER DEFENDANT’S CONVICTION, DEFENDANT HAS STANDING TO CHALLENGE THE CELL SITE LOCATION INFORMATION (CSLI) WARRANT, MATTER REMITTED (FOURTH DEPT).
MOTHER’S ATTORNEY SHOULD NOT HAVE BEEN ALLOWED TO WITHDRAW WITHOUT NOTICE TO MOTHER WHO DID NOT ATTEND THE TERMINATION-OF-PARENTAL-RIGHTS HEARING; THE DEFAULT ORDER TERMINATING MOTHER’S PARENTAL RIGHTS WAS THEREFORE IMPROPER AND APPEAL IS NOT PRECLUDED (FOURTH DEPT).
INMATE’S ‘THREAT’ TO BRING A LAWSUIT WAS NOT AN ACTIONABLE RULE VIOLATION (FOURTH DEPT).
EVIDENCE OF CONSTRUCTIVE POSSESSION OF DRUGS IN AN APARTMENT LEGALLY INSUFFICIENT, CONVICTION REVERSED (FOURTH DEPT).

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