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You are here: Home1 / Criminal Law2 / CRIME OF ATTEMPTED ASSAULT IN THE SECOND DEGREE IS A LEGAL IMPOSSIBILITY...
Criminal Law

CRIME OF ATTEMPTED ASSAULT IN THE SECOND DEGREE IS A LEGAL IMPOSSIBILITY (SECOND DEPT).

The Second Department vacated defendant’s conviction of attempted assault in the second degree, noting that the crime is a legal impossibility:

The crime of attempted assault in the second degree is a legal impossibility (see Penal Law § 120.05[3]; People v Campbell, 72 NY2d 602, 605…). As correctly conceded by the People, the inclusion of that nonexistent crime in the superior court information constituted a nonwaivable jurisdictional defect, necessitating vacatur of the defendant’s conviction of attempted assault in the second degree, vacatur of the sentence imposed thereon, and dismissal of that count of the superior court information … . People v Jones, 2018 NY Slip Op 04565, Second Dept 6-20-18

​CRIMINAL LAW (CRIME OF ATTEMPTED ASSAULT IN THE SECOND DEGREE IS A LEGAL IMPOSSIBILITY (SECOND DEPT))/ASSAULT (CRIME OF ATTEMPTED ASSAULT IN THE SECOND DEGREE IS A LEGAL IMPOSSIBILITY (SECOND DEPT))/ATTEMPTED ASSAULT  (CRIME OF ATTEMPTED ASSAULT IN THE SECOND DEGREE IS A LEGAL IMPOSSIBILITY (SECOND DEPT))

June 20, 2018
Tags: Second Department
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LABOR LAW 200 CAUSE OF ACTION BASED UPON A DANGEROUS CONDITION PROPERLY SURVIVED SUMMARY JUDGMENT, APPELLANTS DID NOT DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONDITION; JUDGE SHOULD NOT HAVE, SUA SPONTE, DENIED A MOTION ON A GROUND NOT RAISED BY A PARTY (SECOND DEPT).
BECAUSE THE ORDER DISMISSING THE INITIAL COMPLAINT DID NOT SPECIFY CONDUCT CONSTITUTING NEGLECT TO PROSECUTE, THE SIX-MONTH TOLL OF THE STATUTE OF LIMITATIONS PURSUANT TO CPLR 205 (a) APPLIED AND THE ACTION WAS TIMELY; THE DISSENT DISAGREED (SECOND DEPT).
THE INSTANT FORECLOSURE ACTION WAS PRECLUDED BY A PRIOR FORECLOSURE ACTION WHICH HAD NOT BEEN DISCONTINUED (SECOND DEPT). ​
PLAINTIFF BANK IN THIS FORECLOSURE ACTION DID NOT DEMONSTRATE STANDING WITH SUFFICIENT PROOF THAT THE NOTE WAS LOST (PURSUANT TO THE UCC) AND DID NOT PRESENT EVIDENCE SUFFICIENT TO WARRANT CORRECTION OF THE LEGAL DESCRIPTION OF THE PREMISES IN THE MORTGAGE BASED UPON MUTUAL MISTAKE (SECOND DEPT).
DRIVER AND CAR OWNER WERE NOT EMPLOYEES OF CAR SERVICE, CAR SERVICE THEREFORE NOT LIABLE FOR ACCIDENT UNDER DOCTRINE OF RESPONDEAT SUPERIOR.
EVEN THOUGH THE PRESUMPTION OF LEGITIMACY WAS NOT REBUTTED WITH RESPECT TO MOTHER’S HUSBAND IN THIS PATERNITY PROCEEDING, FAMILY COURT SHOULD HAVE APPLIED THE DOCTRINE OF EQUITABLE ESTOPPEL UNDER A ‘BEST INTERESTS OF THE CHILD’ ANALYSIS TO ADJUDICATE THE RESPONDENT, WITH WHOM A CHILD-PARENT BOND HAD DEVELOPED, THE FATHER (SECOND DEPT).
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