You are here: / / Conviction on a Lesser Inclusory Count Can Not Stand Even In the Absence...

Conviction on a Lesser Inclusory Count Can Not Stand Even In the Absence of Preservation

The Fourth Department determined defendant’s conviction of criminal possession of a controlled substance in the seventh degree could not stand because that charge was a lesser inclusory count of another count of which the defendant was convicted (criminal possession of a controlled substance in the fifth degree):

Although defendant failed to preserve this contention for our review, the People … correctly concede that “we may review the issue as a matter of law despite defendant’s failure to raise it in the trial court” … . People v Roberts, 2014 NY Slip Op 06707, 4th Dept 10-3-14

 

You might also like
THE TEXTS AND EMAILS WERE NOT SUBSCRIBED; THE BREACH OF CONTRACT ACTION BASED UPON THE EMAILS AND TEXTS WAS BARRED BY THE STATUTE OF FRAUDS (FOURTH DEPT).
DEFENSE COUNSEL INEFFECTIVE; IN THIS MURDER CASE IN WHICH THE EXTREME EMOTIONAL DISTURBANCE (EED) DEFENSE WAS RAISED, DEFENDANT’S MILITARY SERVICE RECORDS, SOCIAL SECURITY DISABILITY RECORDS AND PTSD DIAGNOSIS SHOULD HAVE BEEN PRESENTED AND A PSYCHIATRIC EXPERT SHOULD HAVE BEEN CONSULTED; NEW TRIAL ORDERED (FOURTH DEPT). ​
Defendant Was Lawfully Seized by Police Under these Facts
THE BURGLARY COUNT CHARGED THAT DEFENDANT ENTERED THE VICTIM’S APARTMENT WITH THE INTENT TO “HOLD A KNIFE TO THE VICTIM’S THROAT;” THE JURY WAS INSTRUCTED ONLY THAT DEFENDANT ENTERED THE APARTMENT WITH THE INTENT TO “COMMIT A CRIME;” DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST A JURY INSTRUCTION TAILORED TO MATCH THE CRIME CHARGED IN THE INDICTMENT (FOURTH DEPT).
THE JUDGE ADOPTED A DECISION DRAFTED BY COUNSEL AS THE FINAL DETERMINATION OF THE CASE AND THEREBY VITIATED THE PURPOSE SERVED BY JUDICIAL OPINIONS; THE FOURTH DEPARTMENT VACATED THE JUDGMENT (FOURTH DEPT).
THE CO-GUARDIAN SHOULD NOT HAVE BEEN REMOVED WITHOUT A HEARING; ALTHOUGH THE CO-GUARDIAN HAS A FELONY CONVICTION, SHE OBTAINED A CERTIFICATE OF RELIEF FROM DISABILITIES; THEREFORE, ALTHOUGH SURROGATE’S COURT CAN REMOVE THE CO-GUARDIAN IN THE EXERCISE OF DISCRETION, REMOVAL IS NOT AUTOMATIC (FOURTH DEPT).
SENTENCE DEEMED UNDULY HARSH (FOURTH DEPT).
Scaffold, Safety Railing and Cross Braces Are Safety Devices

Categories

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

Out-of-Court Statements by Defendant and Unknown Woman with Whom Defendant Spoke... Suppressed Statement Improperly Allowed to Be Used to Impeach Defendant—Defendant...