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COURSE OF SEXUAL CONDUCT COUNT VACATED AS AN INCLUSORY CONCURRENT COUNT OF PREDATORY SEXUAL ASSAULT AGAINST A CHILD (FIRST DEPT).

The First Department noted that the course of sexual conduct conviction must be vacated as an inclusory concurrent count of predatory sexual assault against a child. People v Encarnacion, 2020 NY Slip Op 06067, First Dept 10-27-20

 

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MOTION TO VACATE DEFENDANT’S JUDGMENT OF CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING; SUPREME COURT MAY HAVE IMPROPERLY RELIED ON CPL 440.30 (d) WHICH ONLY APPLIES IF THE MOTION IS BASED SOLELY ON AN ALLEGATION BY THE DEFENDANT (FIRST DEPT).
IN THIS SIDEWALK SLIP AND FALL CASE, THE MASTER LEASE VIOLATED GENERAL OBLIGATIONS LAW 5-321 WHICH PROHIBITS A LEASE AGREEMENT FROM PROVIDING THE LANDLORD BE INDEMNIFIED FOR LIABILITY FOR THE LANDLORD’S OWN NEGLIGENCE (FIRST DEPT). ​
ALTHOUGH AN INDICTMENT NEED NOT ALLEGE ACCESSORIAL LIABILITY TO BE LEGALLY SUFFICIENT; WHERE THERE IS NO EVIDENCE A DEFENDANT ACTED AS A PRINCIPAL THE JURY MUST BE INSTRUCTED ON ACCESSORIAL LIABILITY; THE FAILURE TO SO INSTRUCT THE JURY HERE RENDERED THE CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE (FIRST DEPT).
DEFENDANT’S STATEMENT IN A POLICE REPORT ACKNOWLEDGING FAILURE TO STOP AT RED LIGHT WAS AN ADMISSION, CONFLICTING STATEMENT MADE LATER PRESENTED ONLY A FEIGNED ISSUE OF FACT, SUMMARY JUDGMENT PROPERLY AWARDED TO PLAINTIFF (FIRST DEPT).
DEFENDANT’S SLOW MOVING TRUCK FURNISHED THE CONDITION FOR THE REAR-END COLLISION BUT WAS NOT THE CAUSE OF THE COLLISION, DIFFICULTY SEEING BECAUSE OF SUNLIGHT DID NOT CONSTITUTE A NON-NEGLIGENT EXCUSE (FIRST DEPT).
THE PROMISE TO REPAY THE LOAN WAS NOT UNCONDITIONAL BUT RATHER THE DEFENDANT’S HAVING AVAILABLE CASH TO REPAY THE LOAN WAS A CONDITION PRECEDENT, BECAUSE PLAINTIFF DID NOT DEMONSTRATE THE DEFENDANT HAD AVAILABLE CASH, ITS MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
NEW YORK COURTS DO NOT HAVE THE POWER TO DISSOLVE A FOREIGN CORPORATION.
PLAINTIFF’S BREACH-OF-AN-EMPLOYMENT-CONTRACT ACTION SHOULD NOT HAVE BEEN DISMISSED, DESPITE THE FACT THAT DEFENDANT NEVER SIGNED IT (FIRST DEPT).

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DEFENSE COUNSEL WAS GIVEN NOTICE AND THE OPPORTUNITY TO BE HEARD BEFORE THE... THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE IN THIS ASSAULT...