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WAIVER OF INDICTMENT JURISDICTIONALLY DEFECTIVE; IT DID NOT INCLUDE THE APPROXIMATE TIME OF THE OFFENSE (FOURTH DEPT).

The Fourth Department vacated the plea and waiver of indictment because the approximate of the offense was not included in the waiver:

… [D]efendant contends that her waiver of indictment is jurisdictionally defective because it did not contain the “approximate time” of the offense (CPL 195.20). We agree. A jurisdictionally valid waiver of indictment must contain, inter alia, the “approximate time” of each offense charged in the superior court information (SCI) … . “The law demands strict and literal compliance with the constitutional and statutory framework for waiving indictment” … . ” [S]ubstantial compliance [with CPL 195.20] will not be tolerated’ ” … because “compliance with [its] literal terms . . . is the sine qua non of the voluntariness of an indictment waiver” … . Here, as the People correctly concede, the waiver of indictment does not contain the approximate time of the offense … . Moreover, we note that this is not a case ” where the time of the offense is unknown or, perhaps, unknowable’ so as to excuse the absence of such information” … . People v Kerce, 2019 NY Slip Op 08310, Fourth Dept 11-15-19

 

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THE COURT, DEFENSE COUNSEL AND THE PROSECUTOR WERE UNDER THE MISCONCEPTION DEFENDANT WAS ELIGIBLE FOR A PAROLE SUPERVISION SENTENCE AT THE TIME DEFENDANT PLED GUILTY; THEREFORE THE MATTER CAN BE CONSIDERED ON APPEAL IN THE ABSENCE OF PRESERVATION; PLEA VACATED (FOURTH DEPT).
DEFENDANT COMPLAINED THAT HIS ATTORNEY HAD NOT FILED OMNIBUS MOTIONS BUT DEFENSE COUNSEL SAID HE HAD FILED THEM AND THE COURT SAID IT HAD RECEIVED THEM; IN FACT, HOWEVER NO MOTIONS HAD BEEN FILED; DEFENDANT’S COMPLAINTS ABOUT HIS ASSIGNED COUNSEL WARRANTED FURTHER INQUIRY BY THE COURT; DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL, NEW TRIAL ORDERED (FOURTH DEPT).
DEFENDANT WAS NOT PRESENT IN THE COURTROOM WHEN HIS SENTENCE OF INCARCERATION WAS CHANGED, MATTER REMITTED FOR RESENTENCING (FOURTH DEPT).
NEGLIGENCE, BREACH OF CONTRACT AND DISCRIMINATION CLAIMS BROUGHT BY A DISABLED FORMER POLICE OFFICER CONCERNING GENERAL MUNICIPAL LAW 207-c BENEFITS PROPERLY DISMISSED (FOURTH DEPT).
CONTRACT WHICH CALLED FOR THE PRICE FOR EXHIBITS AT TRADE SHOWS TO BE AMORTIZED OVER UP-COMING EVENTS WAS NOT AN AGREEMENT TO AGREE AND WAS SUFFICIENTLY DEFINITE, LIQUIDATED DAMAGES CLAUSE ENFORCEABLE (FOURTH DEPT).
ALTHOUGH COUNTY COURT DID NOT ABUSE ITS DISCRETION, THE APPELLATE COURT EXERCISED ITS INTEREST OF JUSTICE JURISDICTION TO ADJUDICATE DEFENDANT A YOUTHFUL OFFENDER (FOURTH DEPT).
UNIVERSITY STUDENTS WERE CHARGED WITH VIOLATIONS OF THE CODE OF CONDUCT STEMMING FROM THE RELEASE OF VIDEO CLIPS DEPICTING SKITS PERFORMED AT A ROAST HELD BY A FRATERNITY; THE SKITS INCLUDED RACIAL AND RELIGIOUS SLURS AND SIMULATED SEXUAL ACTIVITY AND VIOLENCE; THE 4TH DEPARTMENT HELD THAT THE DISCIPLINARY PROCEDURES COMPORTED WITH THE RULES, THE CODE VIOLATIONS WERE SUPPORTED BY THE EVIDENCE AND THE SANCTIONS DID NOT SHOCK ONE’S SENSE OF FAIRNESS; A STRONG DISSENT ARGUED THE CODE PROVISION PURPORTING TO PROHIBIT SPEECH WHICH “THREATENS” THE “MENTAL HEALTH” OF A PERSON IS SO VAGUE THAT IT CAN NOT SUPPORT A CONVICTION (FOURTH DEPT).
EVIDENCE WAS SEIZED DURING A WARRANTLESS PAROLE SEARCH AT A TIME WHEN DEFENDANT’S POST RELEASE SUPERVISION (PRS) HAD BEEN IMPOSED ADMINISTRATIVELY, WHICH HAS SINCE BEEN FOUND UNCONSTITUTIONAL; BECAUSE THE LAW CONCERNING THE REQUIREMENT OF JUDICIAL IMPOSITION OF PRS IS NOW CLEAR, SUPPRESSING THE EVIDENCE WOULD HAVE NO DETERRENT EFFECT AND IS NOT THEREFORE NECESSARY (FOURTH DEPT).

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FAILURE TO MENTION RESTITUTION IN DEFENDANT’S PRESENCE REQUIRES VACATION... TO BE ENFORCEABLE, A WAIVER OF APPEAL MUST BE SUPPORTED BY A SENTENCING COMMITMENT...