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INCLUSORY CONCURRENT COUNTS DISMISSED (FOURTH DEPT).

The Fourth Department dismissed course of criminal conduct first degree and rape first degree counts as inclusory concurrent counts of predatory sexual assault against a child:

… [C]ounts two and four of the indictment, charging defendant with course of sexual conduct against a child in the first degree (Penal Law § 130.75 [1] [b]) and rape in the first degree (§ 130.35 [4]), respectively, must be dismissed inasmuch as they are inclusory concurrent counts of counts one and three, respectively, charging defendant with predatory sexual assault against a child (§ 130.96) … . People v Feliciano, 2021 NY Slip Op 04289, Fourth Dept 7-9-21

 

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HEARING IS REQUIRED TO DETERMINE WHETHER A GUARDIAN SHOULD BE APPOINTED FOR MOTHER IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING, MOTHER SUFFERS FROM SCHIZOPHRENIA (FOURTH DEPT).
​ A WAIVER OF APPEAL NOT MENTIONED UNTIL SENTENCING IN INVALID; MATTER REMITTED FOR A DECISION ON DEFENDANT’S MOTION TO REDACT STATEMENTS MADE WITHOUT COUNSEL FROM THE PREPLEA INVESTIGATION REPORT (FOURTH DEPT).
​ THE JUDGE SHOULD NOT HAVE DETERMINED THE TRIAL WITNESS’S IDENTIFICATION OF DEFENDANT WAS CONFIRMATORY FOR THE FIRST TIME AT TRIAL; A MIDTRIAL RODRIGUEZ HEARING SHOULD HAVE BEEN HELD; MATTER REMITTED (FOURTH DEPT).
THE CHILDREN WISHED TO REMAIN WITH MOTHER BUT CUSTODY WAS AWARDED TO FATHER; THE ATTORNEY FOR THE CHILD AGREED FATHER SHOULD HAVE CUSTODY; MOTHER REQUESTED A LINCOLN HEARING WHICH WAS DENIED; THE DISSENT ARGUED A LINCOLN HEARING SHOULD HAVE BEEN HELD (FOURTH DEPT).
BANK’S MANAGER WAS AWARE OF ICE IN THE PARKING LOT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, BANK DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE.
ALTHOUGH THE JUDGE IN THIS BENCH TRIAL DID NOT EXPLICITLY RULE ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL, THE MAJORITY DETERMINED THE DENIAL OF THE MOTION WAS IMPLICIT IN THE VERDICT AND THEREFORE THE LEGAL INSUFFICIENCY ARGUMENT COULD BE CONSIDERED ON APPEAL; THE DISSENT DISAGREED (FOURTH DEPT).
COUNTY COURT SHOULD HAVE HELD A HEARING ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE OF COUNSEL GROUNDS, DEFENDANT PRESENTED EVIDENCE AN ALIBI WITNESS WAS NOT INTERVIEWED; A WITNESS’S RECANTATION WAS PROPERLY FOUND UNBELIEVABLE (FOURTH DEPT).
PLAINTIFF’S ASSERTION OF A NEW THEORY OF LIABILITY IN THE PAPERS ANSWERING DEFENDANT HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

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