New York Appellate Digest
  • Home
  • About
  • Just Released
  • Update Service
  • Streamlined Research
  • CLE Courses
  • Contact
  • Menu Menu
You are here: Home1 / Criminal Law2 / ASSAULT SECOND HAS A PERPETRATOR-VICTIM-AGE-DIFFERENCE” ELEMENT;...
Criminal Law, Evidence

ASSAULT SECOND HAS A PERPETRATOR-VICTIM-AGE-DIFFERENCE” ELEMENT; THE PEOPLE FAILED TO PROVE DEFENDANT’S AGE WITH ADMISSIBLE EVIDENCE; CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s attempted assault conviction, which has an “victim-perpetrator age-difference” element, determined the age of the defendant was not proven with admissible evidence:​

… [T]he second-degree assault conviction based on the victim and defendant’s respective ages was against the weight of the evidence because the People did not meet their burden to adduce adequate admissible evidence to establish defendant’s age (see Penal Law § 120.05[12] …). The only evidence offered by the People was the testimony of the arresting officer’s partner, who stated that while “assisting with the arrest,” he learned defendant’s date of birth without explaining whether he acquired the information from questioning defendant, from a fellow officer or from some document or report (see People v Justice, 99 AD3d 1213, 1214 [4th Dept 2012], lv denied 20 NY3d 1012 [2013] [insufficient evidence of the defendant’s age where a police officer generally testified that he learned the defendant’s birthday “during the course of his investigation,” and the People failed to establish that the testimony was admissible under some exception to the hearsay rule]). People v McVay, 2026 NY Slip Op 03887, First Dept 6-18-26

Practice Point: Here the defendant’s age was an element of the crime and the People failed to prove it with admissible evidence. The conviction was therefore reversed.​

 

June 18, 2026
Tags: First Department
Share this entry
  • Share on WhatsApp
https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 Bruce Freeman https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png Bruce Freeman2026-06-18 07:17:112026-06-21 13:04:38ASSAULT SECOND HAS A PERPETRATOR-VICTIM-AGE-DIFFERENCE” ELEMENT; THE PEOPLE FAILED TO PROVE DEFENDANT’S AGE WITH ADMISSIBLE EVIDENCE; CONVICTION REVERSED (FIRST DEPT).
You might also like
THE VALIDATING PETITION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THE PETITION WAS NOT VERIFIED; THE FAILURE TO RAISE THE OBJECTION WITH DUE DILIGENCE WAIVED IT; ALTHOUGH THE LANGUAGE IN THE PETITION WAS NOT EXACTLY THAT IN CPLR 3021, THE PETITION WAS IN FACT VERIFIED (SECOND DEPT).
THE SECOND DEGREE MURDER COUNTS SHOULD HAVE BEEN DISMISSED AS INCLUSORY CONCURRENT COUNTS OF THE FIRST DEGREE MURDER COUNTS (FIRST DEPT).
Clause in Appeal-Waiver Agreement Which Purported to Vacate Plea and Sentence Upon the Filing of a Notice of Appeal Unenforceable
DISCOVERY OF DEFENDANT’S SOURCE CODE, A TRADE SECRET, SHOULD HAVE BEEN ORDERED FOR “ATTORNEYS AND EXPERT EYES ONLY” (FIRST DEPT).
RELEASE APPLICABLE TO INSTITUTION DID NOT APPLY TO A PRIVATE ATTENDING PHYSICIAN AT THE INSTITUTION.
LIABILITY UNDER LABOR LAW 200 DOES NOT REQUIRE THAT PLAINTIFF BE ENGAGED IN CONSTRUCTION WORK; HERE PLAINTIFF FELL OFF THE TOP OF A TRACTOR-TRAILER; THE LABOR LAW 200 CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).
FRAUD AND FRAUDULENT CONCEALMENT CAUSES OF ACTION AGAINST MORGAN STANLEY, STEMMING FROM RESIDENTIAL MORTGAGE-BACKED SECURITIES, PROPERLY SURVIVED A MOTION TO DISMISS.
DEFENDANT WAS TOLD HE COULD APPEAL THE DENIAL OF HIS SPEEDY TRIAL MOTION AFTER ENTERING A GUILTY PLEA, WRONG ADVICE WARRANTED VACATING THE PLEA DESPITE FAILURE TO PRESERVE THE ARGUMENT (FIRST DEPT).

Categories

  • Abuse of Process
  • Account Stated
  • Accountant Malpractice
  • Administrative Law
  • Agency
  • Animal Law
  • Appeals
  • Arbitration
  • Architectural Malpractice
  • Associations
  • Attorneys
  • Banking Law
  • Bankruptcy
  • Battery
  • Chiropractor Malpractice
  • Civil Commitment
  • Civil Conspiracy
  • Civil Forfeiture
  • Civil Procedure
  • Civil Rights Law
  • Condominium Corporations
  • Condominiums
  • Constitutional Law
  • Consumer Law
  • Contempt
  • Contract Law
  • Conversion
  • Cooperatives
  • Copyright
  • Corporation Law
  • Correction Law
  • County Law
  • Court of Claims
  • Criminal Law
  • Debtor-Creditor
  • Defamation
  • Dental Malpractice
  • Disciplinary Hearings (Inmates)
  • Education-School Law
  • Election Law
  • Eminent Domain
  • Employment Law
  • Engineering Malpractice
  • Environmental Law
  • Equitable Recoupment
  • Evidence
  • Fair Credit Reporting Act
  • Fair Housing Act
  • Fair Housing Amendments Act
  • False Arrest
  • False Claims Act
  • False Imprisonment
  • Family Law
  • Federal Employers' Liability Act (FELA)
  • Fiduciary Duty
  • Forcible Touching
  • Foreclosure
  • Fraud
  • Freedom of Information Law (FOIL)
  • Human Rights Law
  • Immigration Law
  • Immunity
  • Indian Law
  • Insurance Law
  • Intellectual Property
  • Intentional Infliction of Emotional Distress
  • Involuntary Medical Treatment and Feeding (Inmates)
  • Judges
  • Judiciary Law
  • Labor Law
  • Labor Law-Construction Law
  • Land Use
  • Landlord-Tenant
  • Legal Malpractice
  • Lien Law
  • Limited Liability Company Law
  • Longshoreman's and Harbor Worker's Compensation Act
  • Malicious Prosecution
  • Maritime Law
  • Medicaid
  • Medical Malpractice
  • Mental Hygiene Law
  • Military Law
  • Money Had and Received
  • Municipal Law
  • Navigation Law
  • Negligence
  • Negligent Infliction of Emotional Distress
  • Negligent Misrepresentation
  • Notarial Misconduct
  • Nuisance
  • Partnership Law
  • Personal Property
  • Pharmacist Malpractice
  • Physician Patient Confidentiality
  • Pistol Permits
  • Prima Facie Tort
  • Private Nuisance
  • Privilege
  • Products Liability
  • Professional Malpractice
  • Public Authorities Law
  • Public Corporations
  • Public Health Law
  • Public Nuisance
  • Real Estate
  • Real Property Actions and Proceedings Law (RPAPL)
  • Real Property Law
  • Real Property Tax Law
  • Religion
  • Replevin
  • Retirement and Social Security Law
  • Securities
  • Sepulcher
  • Sex Offender Registration Act (SORA)
  • Social Services Law
  • Statutes
  • Tax Law
  • Tenant Harassment
  • Tortious Interference with Contract
  • Tortious Interference with Employment
  • Tortious Interference with Prospective Business Relations
  • Tortious Interference With Prospective Economic Advantage
  • Town Law
  • Toxic Torts
  • Trade Secrets
  • Trademarks
  • Trespass
  • Trespass to Chattels
  • Trusts and Estates
  • Uncategorized
  • Unemployment Insurance
  • Unfair Competition
  • Uniform Commercial Code
  • Usury
  • Utilities
  • Vehicle and Traffic Law
  • Victims of Gender-Motivated Violence Protection Law (VGM)
  • Village Law
  • Water Law
  • Workers' Compensation
  • Zoning

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DOWSING THE VICTIM WITH ACCELERANT AND IGNITING IT DO NOT SATISFY THE STATUTORY... THE DEFENSE REQUEST FOR A MISSING WITNESS JURY INSTRUCTION WAS PROPERLY DENIED;...
Scroll to top