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WAIVER OF APPEAL INVALID; ALREADY COMPLETED SENTENCE REDUCED BECAUSE OF THE IMMIGRATION CONSEQUENCES OF THE ORIGINAL SENTENCE; MATTER CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reducing the defendant’s already completed sentence in the interest of justice, determined the waiver of appeal was invalid and the immigration consequences of defendant’s sentence warranted a reduction to 364 days:

Given the defendant’s age of 20 years, that he had dropped out of high school in the 11th grade, that he had documented mental health issues, and his limited experience in the criminal justice system, the Supreme Court’s terse colloquy regarding the appeal waiver was insufficient  … . A written appeal waiver, such as the one signed by the defendant, is “not a complete substitute for an on-the-record explanation of the nature of the right to appeal” … . It is not “sufficient for the trial court to defer to the defendant’s off-the-record conversations with defense counsel by merely confirming with defense counsel that he or she has discussed the waiver of the right to appeal with the defendant” … . Thus, the appeal waiver does not preclude review of the defendant’s excessive sentence claim.

Although the defendant has served his respective sentences, the question of whether the sentences imposed should be reduced is not academic, because those sentences may have potential immigration consequences … .

Considering all of the relevant circumstances of this case, including the potential immigration consequences to the defendant, his sentences should be reduced to concurrent definite terms of imprisonment of 364 days … . People v Bakayoko, 2019 NY Slip Op 05677, Second Dept 7-17-19

 

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INSURANCE AGENCY ALLEGED FRAUD ON THE PART OF THE INSURED WHICH RESULTED IN A LOWER PREMIUM, THE COMPLAINT ADEQUATELY ALLEGED A FRAUD CAUSE OF ACTION (SECOND DEPT).
ALLEGED ASSAULT BY DOCTOR WAS OUTSIDE THE SCOPE OF THE DOCTOR’S EMPLOYMENT BY DEFENDANT HOSPITAL, THE ACTION AGAINST THE HOSPITAL PURSUANT TO THE DOCTRINE OF RESPONDEAT SUPERIOR SHOULD HAVE BEEN DISMISSED, TIME FOR SUMMARY JUDGMENT MOTION STARTED ANEW AFTER THE NOTE OF ISSUE WAS VACATED, FAILURE TO ATTACH PLEADINGS TO MOTION FOR SUMMARY JUDGMENT NOT FATAL (SECOND DEPT).
A PHOTOGRAPH DOWNLOADED FROM FACEBOOK ALLEGEDLY SHOWING DEFENDANT WEARING CLOTHES SIMILAR TO THE CLOTHES WORN BY THE PERPETRATOR SHOULD NOT HAVE BEEN ADMIITTED IN EVIDENCE; THE PHOTOGRAPH WAS NOT AUTHENTICATED; NEW TRIAL ORDERED (SECOND DEPT).
THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF’S MOTORCYCLE WAS SO CLOSE AS TO CONSTITUTE AN IMMEDIATE HAZARD WHEN DEFENDANT ATTEMPTED TO MAKE A LEFT TURN ACROSS PLAINTIFF’S LANE OF TRAFFIC; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
Under the Circumstances, the Filing of a Family Offense Petition Against the Father and the Issuance of an Order of Protection Made the Children Dependent on a Juvenile Court, a Prerequisite for Special Immigrant Juvenile Status
SUPREME COURT SHOULD NOT HAVE, SUA SPONTE, GRANTED RELIEF NOT REQUESTED IN PLAINTIFFS’ UNOPPOSED MOTION AND SHOULD NOT HAVE CONSIDERED EVIDENCE NOT BEFORE IT; THE ORDER SETTLING A CLASS ACTION FOR UNPAID WAGES AND OVERTIME SHOULD NOT HAVE DECLARED INVALID CERTAIN OPT-OUT STATEMENTS WHICH WERE NOT REFERRED TO IN PLAINTIFFS’ MOTION AND WERE NOT OTHERWISE BEFORE THE COURT (SECOND DEPT).
NOTICE TO ADMIT IMPROPERLY SOUGHT CONCESSIONS THAT WENT TO HEART OF THE CONTROVERSY.

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