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INSUFFICIENT EVIDENCE TO SUPPORT PHYSICAL INJURY ELEMENT OF ASSAULT THIRD, INSUFFICIENT EVIDENCE TO WARRANT SENTENCING AS A PERSISTENT FELONY OFFENDER.

The Second Department determined the evidence of physical injury was not sufficient to support the assault third conviction. The court further determined the totality of the circumstances did not support sentencing defendant as a persistent felony offender:

The record, which contains photographs that were shown to the jury depicting the complainant’s injury, demonstrated that the complainant sustained a one-half inch laceration on one of her toes, which stopped bleeding before an emergency medical technician arrived at the scene. No evidence was introduced that the injury sustained by the complainant caused her more than trivial pain. The complainant’s vague testimony that she was unable to wear shoes for an unspecified period of time failed to sufficiently demonstrate that the use of her foot was impaired by her injury. Accordingly, there was insufficient evidence that the complainant suffered a “physical injury” within the meaning of Penal Law § 10.00(9) … . …

… [T]he totality of the evidence adduced at the persistent felony offender hearing, although warranting the defendant’s adjudication as a second felony offender, did not warrant his adjudication as a persistent felony offender … . In addition, in reaching its determination, the Supreme Court improperly considered a crime of which the defendant was acquitted as a basis for sentencing … . People v Fews. 2017 NY Slip Op 02443, 2nd Dept 3-29-17

 

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THE DEFENDANT WAS CHARGED WITH CRIMINALLY NEGLIGENT HOMICIDE BASED UPON STRIKING THE VICTIM WITH HER CAR; IN SUMMATION THE PROSECUTOR CHARACTERIZED DEFENDANT’S ACTIONS AS INTENTIONAL, DENIGRATED THE DEFENSE THEORIES, REFERRED TO IRRELEVANT CONDUCT, AND ASSUMED FACTS NOT IN EVIDENCE; DEFENDANT WAS DEPRIVED OF A FAIR TRIAL BY THE PROSECUTORIAL MISCONDUCT; THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).
THE BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).
PLAINTIFF ALLEGED CONSTRUCTION WORK ON DEFENDANT’S PROPERTY CAUSED WATER TO ENCROACH ON PLAINTIFF’S PROPERTY; THE NEGLIGENCE ACTION WAS TIME-BARRED BECAUSE THE CONSTRUCTION WORK WAS DONE MORE THAN THREE YEARS BEFORE THE ACTION WAS FILED; THE RELATED NUISANCE AND TRESPASS ACTIONS WERE NOT TIME-BARRED BECAUSE THEY MAY CONSTITUTE “CONTINUING WRONGS” (SECOND DEPT). ​
AFFIRMATIVE DEFENSE WHICH ARISES FROM THE ACTION BROUGHT IS NOT TIME-BARRED (SECOND DEPT).
PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON LIABILITY IN THIS INTERSECTION TRAFFIC ACCIDENT CASE; BUT DEFENDANTS’ COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).
ORDERS ISSUED WHEN THE STAY PURSUANT TO CPLR 321(c) WAS IN EFFECT, DUE TO THE INABILITY OF PETITIONER’S COUNSEL TO CONTINUE FOR MEDICAL REASONS, SHOULD HAVE BEEN VACATED (SECOND DEPT).
PLAINTIFF’S EXPERT’S AFFIDAVIT WAS NOT CONCLUSORY AND SPECULATIVE; DEFENDANT DOCTOR’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
JUDGE WAS WITHOUT AUTHORITY TO DISMISS THE FORECLOSURE COMPLAINT; ISSUE HAD NOT BEEN JOINED AND THERE WAS NO EVIDENCE PLAINTIFF FAILED TO APPEAR AT A SCHEDULED CONFERENCE (SECOND DEPT).

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