You are here: / / Concurrent Inclusory Counts Dismissed Despite Lack of Preservation

Concurrent Inclusory Counts Dismissed Despite Lack of Preservation

The Fourth Department determined the lesser inclusory counts of vehicular manslaughter in the first degree must be dismissed, despite lack of preservation:

… [C]ounts four, five and seven must be dismissed as lesser inclusory counts of count three, vehicular manslaughter in the first degree. Initially, we note that defendant’s failure to preserve the issue for our review is of no moment because preservation is not required … . With respect to the merits, “concurrent counts are inclusory when the offense charged in one is greater than that charged in the other and when the latter is a lesser offense included within the greater” … . Thus, where, as here, “it is impossible to commit a particular crime without concomitantly committing, by the same conduct, []other offense[s] of lesser grade or degree, the latter [are], with respect to the former, . . . lesser included offense[s]” … . Because it is impossible to commit the crime of vehicular manslaughter in the first degree under Penal Law § 125.13 (4), without concomitantly committing the crime of vehicular manslaughter in the second degree under Penal Law § 125.12, or without concomitantly committing the crime of, inter alia, driving while ability impaired by drugs under Vehicle and Traffic Law § 1192 (4), the latter two crimes are inclusory concurrent counts of the former crime. We therefore modify the judgment by dismissing the three counts of the indictment charging the latter two crimes. People v Bank, 2015 NY Slip Op 04954, 4th Dept 6-12-15

 

You might also like
IN THIS COMMON LAW DISSOLUTION ACTION, PLAINTIFF WAS ENTITLED TO PAYMENT BY THE CORPORATION OF HIS EXPENSES FOR DEFENDING AGAINST THE CORPORATION’S COUNTERCLAIMS, AND PLAINTIFF’S MOTION TO PROHIBIT THE DEFENDANTS FROM USING CORPORATE FUNDS TO DEFEND AGAINST THE COMMON LAW DISSOLUTION ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).
QUESTION OF FACT WHETHER THE ACCELERATION OF THE DEBT IN 2010 WHEN THE FORECLOSURE ACTION WAS STARTED WAS REVOKED BEFORE THE SIX-YEAR STATUTE OF LIMITATIONS RAN OUT (FOURTH DEPT).
FAILURE TO HOLD A SANDOVAL HEARING AND ALLOWING PRIOR CONSISTENT STATEMENTS TO BOLSTER THE COMPLAINING WITNESS’S TESTIMONY REQUIRED REVERSAL.
Proof Requirements Re: Whether An Account Is Entirely Marital Property Explained
DEFENDANT ENTITLED TO A HEARING ON WHAT SHOULD BE REDACTED FROM THE PRESENTENCE REPORT BUT IS NOT ENTITLED TO RESENTENCING (FOURTH DEPT).
DEFENSE COUNSEL’S LETTER REQUESTING A PLEA-BARGAIN CONFERENCE WAS NOT A WAIVER OF DEFENDANT’S SPEEDY TRIAL RIGHTS.
PLAINTIFFS SUED A FOSTER-CHILD PLACEMENT SERVICE FOR FRAUD AND NEGLIGENCE AFTER THE FOSTER CHILD SEXUALLY ASSAULTED PLAINTIFFS’ BIOLOGICAL CHILD; THE FRAUD ACTION WAS NOT TIME-BARRED BECAUSE THE PLACEMENT SERVICE’S MERE KNOWLEDGE OF THE FOSTER CHILD’S SEXUAL BEHAVIOR IN 2008 DID NOT START THE SIX-YEAR STATUTE OF LIMITATIONS, AND THE NEGLIGENCE ACTION WAS SUPPORTED BY A DUTY OWED TO PLAINTIFFS’ BIOLOGICAL CHILD (FOURTH DEPT).
MURDER CONVICTION REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2023 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

Even When the Injured Worker, Who Had Received Workers’ Compensation Benefits,... Question of Fact Whether Failure to Provide Personal Ropes to Firefighters Gave...