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
THE ARBITRATOR’S DECISION TO OVERLOOK AN INSTANCE OF TARDINESS (ONE MINUTE LATE DUE TO A DISABLED TRAIN BLOCKING TRAFFIC) WHICH OTHERWISE WOULD REQUIRE THE GRIEVANT’S TERMINATION WAS NOT IRRATIONAL AND DID NOT EXCEED THE ARBITRATOR’S ENUMERATED POWERS (FOURTH DEPT).
EVIDENCE OF ALLEGED FRAUD IN THE ACKNOWLEDGMENT OF SIGNATURES WAS NOT SUFFICIENT TO SUPPORT THE INVALIDATION OF THE DESIGNATING PETITION (FOURTH DEPT). ​
PLAINTIFF SHOULD HAVE BEEN ALLOWED TO AMEND THE AD DAMNUM CLAUSE OF THE COMPLAINT.
DEFENDANT WAS CONVICTED OF FELONY MURDER, TWO COUNTS OF ROBBERY AND CRIMINAL POSSESSION OF A WEAPON BASED PRIMARILY ON HIS CONFESSION; THE ROBBERY CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE; THE JUDGE DID NOT MAKE THE REQUIRED MINIMAL INQUIRY WHEN DEFENDANT REQUESTED NEW COUNSEL; COUNSEL WERE INEFFECTIVE FOR FAILING TO REQUEST THE REDACTION OF DEFENDANT’S VIDEO STATEMENT; NEW TRIAL ORDERED ON THE FELONY MURDER AND CRIMINAL POSSESSION OF A WEAPON COUNTS (FOURTH DEPT).
AN ORAL STIPULATION IS INVALID PURSUANT TO DOMESTIC RELATIONS LAW SECION 236(B)(3) AND CANNOT BE RATIFIED; THERE IS NOW AN EVEN SPLIT AMONG THE APPELLATE DIVISION DEPARTMENTS ON THIS ISSUE (FOURTH DEPT).
Failure to Fully Inform About Postrelease Supervision Required Reversal
Legal Malpractice Action Accrues When Committed, Not When Client Learns of It
Defendant Could Not Deny Ownership Of Vehicle (Which Was Allegedly Transferred to Another Prior to the Accident) Because License Plates Had Not Been Removed

Categories

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

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

The One-Year-and-Ninety-Day Time Limit for Bringing Suit Under the Public Authorities... Defendant’s Motion to Vacate His Conviction, Supported by Evidence that...