New York Appellate Digest
  • Home
  • About
  • Just Released
  • Update Service
  • Streamlined Research
  • CLE Courses
  • Contact
  • Menu Menu
You are here: Home1 / Criminal Law2 / NO EVIDENTIARY BASIS FOR CONSTRUCTIVE POSSESSION JURY INSTRUCTION, NEW...
Criminal Law

NO EVIDENTIARY BASIS FOR CONSTRUCTIVE POSSESSION JURY INSTRUCTION, NEW TRIAL ORDERED.

The Second Department determined defendant was entitled to a new trial on the criminal possession of a weapon counts.  The People requested a jury instruction for constructive possession and the instruction was given. The evidence at trial did not provide a basis for the instruction:

After the gunpoint robbery of the supermarket, committed by a single perpetrator, the defendant was arrested when he was found hiding in an attic of a nearby house. Shortly thereafter, police officers recovered a gun from the attic. The People sought to prove at trial, among other things, that the defendant was the individual who committed the robbery with the gun recovered from the attic. In the bill of particulars and throughout the trial, the People’s theory on the counts of criminal possession of a weapon in the second degree was that the defendant possessed the subject gun in the supermarket. Even at the charge conference, at which the People requested a charge of constructive possession, the People maintained that the basis of those counts was the defendant’s possession of the gun in the supermarket. Since there was no evidence from which the jury could conclude that the defendant constructively possessed the gun in the supermarket, that charge should not have been given … . People v Golden, 2017 NY Slip Op 00661, 2nd Dept 2-1-17

CRIMINAL LAW (NO EVIDENTIARY BASIS FOR CONSTRUCTIVE POSSESSION JURY INSTRUCTION, NEW TRIAL ORDERED)/JURY INSTRUCTIONS (CRIMINAL LAW, NO EVIDENTIARY BASIS FOR CONSTRUCTIVE POSSESSION JURY INSTRUCTION, NEW TRIAL ORDERED)/CONSTRUCTIVE POSSESSION (CRIMINAL LAW, NO EVIDENTIARY BASIS FOR CONSTRUCTIVE POSSESSION JURY INSTRUCTION, NEW TRIAL ORDERED)/EVIDENCE (CRIMINAL LAW, CONSTRUCTIVE POSSESSION, NO EVIDENTIARY BASIS FOR CONSTRUCTIVE POSSESSION JURY INSTRUCTION, NEW TRIAL ORDERED)

February 1, 2017
Tags: Second Department
Share this entry
  • Share on WhatsApp
https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 CurlyHost https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png CurlyHost2017-02-01 10:16:062020-01-28 11:34:47NO EVIDENTIARY BASIS FOR CONSTRUCTIVE POSSESSION JURY INSTRUCTION, NEW TRIAL ORDERED.
You might also like
DEFENDANT DID NOT HAVE AN OPPORTUNITY TO BE HEARD ON THE SEXUAL PREDATOR DESIGNATION WHICH THE JUDGE IMPOSED SUA SPONTE, DESIGNATION DELETED (SECOND DEPT).
PLAINTIFF FELL WHILE DOING ROUTINE REPAIR ON AN AIR CONDITIONER, NOT COVERED BY LABOR LAW 240(1).
PLAINTIFF COULD NOT PROCEED ON A THEORY NOT RAISED IN THE NOTICE OF CLAIM; ALTHOUGH THE ISSUE WAS RAISED FOR THE FIRST TIME ON APPEAL, IT COULD BE CONSIDERED (SECOND DEPT).
A COUNTY SHERIFF WAS INVOLVED IN THE TRAFFIC ACCIDENT FOR WHICH PETITIONER SOUGHT LEAVE TO FILE A LATE NOTICE OF CLAIM; BECAUSE THE COUNTY WAS AWARE OF THE POTENTIAL ACTION FROM THE OUTSET, LEAVE WAS PROPERLY GRANTED (SECOND DEPT).
PLAINTIFF DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE OF DEFAULT PROVISION OF THE MORTGAGE; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
DEFENDANT’S MOTION TO CANCEL AND DISCHARGE THE MORTGAGE BASED ON THE EXPIRATION OF THE STATUTE OF LIMITATIONS SHOULD HAVE BEEN GRANTED, NO GROUNDS FOR IMPOSING AN EQUITABLE MORTGAGE IN FAVOR OF PLAINTIFF (SECOND DEPT).
ALTHOUGH THE OUT OF POSSESSION LANDLORDS WERE OBLIGATED TO MAKE REPAIRS, THEY DEMONSTRATED THEY DID NOT CREATE THE ALLEGED DANGEROUS CONDITION AND DID NOT HAVE NOTICE OF IT, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
EVEN THOUGH PLAINTIFF DID NOT TIMELY FILE A NOTE OF ISSUE AND DID NOT COMPLY WITH A PRIOR DISCOVERY ORDER, THE JUDGE WAS WITHOUT AUTHORITY TO, SUA SPONTE, DISMISS THE COMPLAINT BECAUSE PLAINTIFF HAD NOT BEEN SERVED WITH A VAILD 90-DAY DEMAND TO FILE A NOTE OF ISSUE (SECOND DEPT).

Categories

  • Abuse of Process
  • Account Stated
  • Accountant Malpractice
  • Administrative Law
  • Agency
  • Animal Law
  • Appeals
  • Arbitration
  • Architectural Malpractice
  • Associations
  • Attorneys
  • Banking Law
  • Bankruptcy
  • Battery
  • Chiropractor Malpractice
  • Civil Commitment
  • Civil Conspiracy
  • Civil Forfeiture
  • Civil Procedure
  • Civil Rights Law
  • Condominiums
  • Constitutional Law
  • Consumer Law
  • Contempt
  • Contract Law
  • Conversion
  • Cooperatives
  • Copyright
  • Corporation Law
  • Correction Law
  • Court of Claims
  • Criminal Law
  • Debtor-Creditor
  • Defamation
  • Dental Malpractice
  • Disciplinary Hearings (Inmates)
  • Education-School Law
  • Election Law
  • Eminent Domain
  • Employment Law
  • Engineering Malpractice
  • Environmental Law
  • Evidence
  • Fair Credit Reporting Act
  • Fair Housing Act
  • Fair Housing Amendments Act
  • False Arrest
  • False Claims Act
  • False Imprisonment
  • Family Law
  • Federal Employers' Liability Act (FELA)
  • Fiduciary Duty
  • Foreclosure
  • Fraud
  • Freedom of Information Law (FOIL)
  • Human Rights Law
  • Immigration Law
  • Immunity
  • Indian Law
  • Insurance Law
  • Intellectual Property
  • Intentional Infliction of Emotional Distress
  • Involuntary Medical Treatment and Feeding (Inmates)
  • Judges
  • Labor Law
  • Labor Law-Construction Law
  • Land Use
  • Landlord-Tenant
  • Legal Malpractice
  • Lien Law
  • Limited Liability Company Law
  • Longshoreman's and Harbor Worker's Compensation Act
  • Malicious Prosecution
  • Maritime Law
  • Medicaid
  • Medical Malpractice
  • Mental Hygiene Law
  • Military Law
  • Money Had and Received
  • Municipal Law
  • Navigation Law
  • Negligence
  • Negligent Infliction of Emotional Distress
  • Negligent Misrepresentation
  • Notarial Misconduct
  • Nuisance
  • Partnership Law
  • Personal Property
  • Pharmacist Malpractice
  • Physician Patient Confidentiality
  • Pistol Permits
  • Prima Facie Tort
  • Private Nuisance
  • Privilege
  • Products Liability
  • Public Authorities Law
  • Public Corporations
  • Public Health Law
  • Public Nuisance
  • Real Estate
  • Real Property Actions and Proceedings Law (RPAPL)
  • Real Property Law
  • Real Property Tax Law
  • Religion
  • Replevin
  • Retirement and Social Security Law
  • Securities
  • Sepulcher
  • Sex Offender Registration Act (SORA)
  • Social Services Law
  • Statutes
  • Tax Law
  • Tenant Harassment
  • Tortious Interference with Contract
  • Tortious Interference with Employment
  • Tortious Interference with Prospective Business Relations
  • Tortious Interference With Prospective Economic Advantage
  • Toxic Torts
  • Trade Secrets
  • Trademarks
  • Trespass
  • Trusts and Estates
  • Unemployment Insurance
  • Unfair Competition
  • Uniform Commercial Code
  • Usury
  • Utilities
  • Vehicle and Traffic Law
  • Victims of Gender-Motivated Violence Protection Law (VGM)
  • Water Law
  • Workers' Compensation
  • Zoning

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

SPEED OF PLAINTIFF BICYCLIST RAISED A QUESTION OF FACT RE HIS COMPARATIVE N... MOTION FOR DNA TESTING OF CERTAIN TRIAL EVIDENCE SHOULD NOT HAVE BEEN DENIE...
Scroll to top