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TRIAL COURT PROPERLY REFUSED TO INSTRUCT THE JURY ON ASSAULT THIRD AS A LESSER INCLUDED OFFENSE, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the trial judge properly refused to instruct the jury on the lesser included offense of assault third degree. The dissenters disagreed:

… [T]he court did not err in refusing to charge the jury on the lesser included offense of assault in the third degree (Penal Law § 120.00 [2]). Based on the number and sizes of the scars to her face, there is no reasonable view of the evidence that would support a finding that the victim sustained only a physical injury as opposed to a serious physical injury … . People v Sipp, 2019 NY Slip Op 00771, Fourth Dept 2-1-19

 

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DEFENDANT WAS CONVICTED OF ASSAULT THIRD BASED UPON HIS LOSING CONTROL OF THE CAR AND CRASHING, INJURING A PASSENGER; THE “CRIMINAL NEGLIGENCE” ELEMENT OF ASSAULT THIRD WAS NOT SUPPORTED BY THE EVIDENCE; CONVICTION REVERSED UNDER A “WEIGHT OF THE EVIDENCE” ANALYSIS (FOURTH DEPT).
IN THIS COMBINED ARTICLE 78 AND DECLARATORY JUDGMENT ACTION, THE FOUR-MONTH STATUTE OF LIMITATIONS APPLICABLE TO ARTICLE 78 DID NOT APPLY TO THE DECLARATORY JUDGMENT ACTION WHICH ONLY INVOLVED PRIVATE PARTIES, NOT A GOVERNMENT BODY OR OFFICER (FOURTH DEPT).
MOTHER’S PETITION FOR A MODIFICATION OF CUSTODY TO ALLOW RELOCATION SHOULD NOT HAVE BEEN DISMISSED WITHOUT A HEARING (FOURTH DEPT).
DEFENSE COUNSEL WAS DEEMED INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR’S REPEATED PREJUDICIAL REMARKS MADE TO PROSPECTIVE JURORS (TO THE EFFECT “I CAN SLEEP AT NIGHT BECAUSE I AM NO LONGER A DEFENSE ATTORNEY”), AND FOR AGREEING TO THE JUDGE’S REQUEST TO HAVE THE TWO SIDES ALTERNATE GOING FIRST IN EXERCISING PEREMPTORY JUROR CHALLENGES (IN VIOLATION OF THE CRIMINAL PROCEDURE LAW) (FOURTH DEPT). ​
STEP ONE OF DEFENDANT’S BATSON CHALLENGE PROPERLY REJECTED AS VAGUE AND CONCLUSORY; THERE WAS NO CONCEPCION BARRIER TO AFFIRMING THE TRIAL COURT’S STEP-ONE RULING; THE REQUEST FOR THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).
DEFENDANTS’ USE OF DOMAIN NAMES VERY SIMILAR TO PLAINTIFF’S STATED CAUSES OF ACTION FOR UNFAIR COMPETITION AND CYBERSQUATTING (FOURTH DEPT).
MALICIOUS PROSECUTION AND ABUSE OF PROCESS CAUSES OF ACTION NOT SUFFICIENTLY PLED.
CITY’S DETERMINATION IT WOULD NOT DEFEND A POLICE OFFICER IN A CIVIL ACTION STEMMING FROM THE OFFICER’S STRIKING A CIVILIAN WAS ARBITRARY AND CAPRICIOUS (FOURTH DEPT).

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