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CRIMINAL POSSESSION OF A WEAPON SECOND DEGREE AND CRIMINAL POSSESSION OF A FIREARM ARE INCLUSORY CONCURRENT COUNTS (SECOND DEPT).

The Second Department determined criminal possession of a weapon in the second degree and criminal possession of a firearm are inclusory concurrent counts:

… [B]ecause the charge of criminal possession of a weapon in the second degree and the charge of criminal possession of firearm are inclusory concurrent counts, the conviction of criminal possession of a firearm, as well as the sentence imposed thereon, must be vacated, and that count of the indictment must be dismissed … . People v Nicoletti, 2020 NY Slip Op 07401, Second Dept 12-9-20

 

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HERE THE FAILURE TO OPPOSE THE MOTION FOR SUMMARY JUDGMENT WAS DUE TO NEGLECT WHICH DOES NOT WARRANT VACATUR; THE MOTION TO VACATE THE ORDER ENTERED ON PLAINTIFF’S DEFAULT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​
THE BURGLARY COUNT WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT ALLEGED DEFENDANT WAS ARMED WITH A “KNIFE” WHICH IS NOT NECESSARILY A “DEADLY WEAPON;” THE ATTEMPT TO AMEND THE COUNT WAS NOT AUTHORIZED; THE SANDOVAL RULING WAS (HARMLESS) ERROR (SECOND DEPT).
OUT OF POSSESSION LANDLORD (NYC HOUSING AUTHORITY) DEMONSTRATED IT DID NOT HAVE NOTICE OF A DEFECTIVE WINDOW WHICH ALLEGEDLY SLAMMED SHUT SEVERING A PORTION OF PLAINTIFF’S FINGER, LANDLORD’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
THE ORDER ISSUED AFTER A TRAVERSE HEARING FINDING DEFENDANTS WERE NOT PROPERLY SERVED IS APPEALABLE PURSUANT TO CPLR 5501 (C); THE ORDER BRINGS UP FOR APPEAL WHETHER THE TRAVERSE HEARING WAS NECESSARY; THE MAJORITY C0NCLUDED THE HEARING WAS NOT NECESSARY; THERE WAS AN EXTENSIVE DISSENT (SECOND DEPT).
Conviction of Endangering Welfare of a Child Against Weight of Evidence; Defendant Did Not Open Door to Questioning About Prior Bad Acts Ruled Off Limits in Sandoval Hearing; Rape Shield Law Exception Applied
SURROGATE’S COURT DOES NOT HAVE THE AUTHORITY TO ABROGATE OR VACATE A FOREIGN ORDER OF ADOPTION.
PLAINTIFF IN THIS MED-MAL WRONGFUL-DEATH ACTION DID NOT RESPOND TO THE NINETY-DAY DEMAND TO FILE A NOTE OF ISSUE, DID NOT PRESENT A REASONABLE EXCUSE FOR THE FAILURE TO RESPOND, AND DID NOT DEMONSTRATE A MERITORIOUS CAUSE OF ACTION; THE COMPLAINT SHOULD HAVE BEEN DISMISSED (SECOND DEPT).
PLAINTIFF’S STEPPING ON AN UNSECURED PLANK HE HAD JUST PLACED, RATHER THAN AN AVAILABLE SECURED PLANK, CONSTITUTED THE SOLE PROXIMATE CAUSE OF HIS FALL, DEFENDANTS’ PROPERLY GRANTED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

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