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THE ATTEMPTED GANG ASSAULT CHARGE WAS A LEGAL IMPOSSIBILITY FOR TRIAL PURPOSES (FIRST DEPT).

The First Department, vacating defendant’s conviction, determined the charged crime was a legal impossibility:

“[A]ttempted gang assault in the second degree is a legal impossibility for trial purposes” … . “One cannot attempt to create an unintended result” … . People v Delacruz, 2019 NY Slip Op 08498, First Dept 11-21-19

 

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A FINDING DEFENDANT SUFFERS FROM A MENTAL ABNORMALITY CANNOT BE BASED SOLELY ON A FINDING DEFENDANT SUFFERS FROM ANTI-SOCIAL PERSONALITY DISORDER (ASPD); REFUSAL OF DEFENDANT’S REQUEST FOR A JURY INSTRUCTION TO THAT EFFECT WAS REVERSIBLE ERROR; DEFENDANT’S MOTION TO SET ASIDE THE VERDICT ADJUDICATING HIM A SEX OFFENDER REQUIRING CIVIL MANAGEMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).
DEFENDANT WAS NOT GIVEN AN OPPORTUNITY TO RESPOND TO A RISK-ASSESSMENT THEORY RAISED FOR THE FIRST TIME AT THE HEARING; MATTER REMANDED (FIRST DEPT).
​ DEFENDANT WAS SENTENCED VIRTUALLY AND DID NOT WAIVE HIS RIGHT TO BE PRESENT; RESENTENCING ORDERED (FIRST DEPT).
HERE THE PEOPLE’S FAILURE TO PROVIDE TEN-DAY’S NOTICE THEY WERE SEEKING A HIGHER SORA RISK LEVEL THAN THAT RECOMMENDED BY THE BOARD WARRANTED A REDUCTION FROM LEVEL THREE TO TWO; DEFENSE COUNSEL’S REPLY TO THE LATE NOTICE DID NOT WAIVE THE REQUIREMENT (FIRST DEPT).
PLAINTIFF IN THIS NEGLIGENT-HIRING ACTION AGAINST THE HOSPITAL WHICH EMPLOYED A DOCTOR WHO ALLEGEDLY SEXUALLY ASSAULTED HER AND OTHER PATIENTS SOUGHT DISCOVERY; THE IDENTITIES OF THE OTHER ASSAULTED PATIENTS WERE NOT PROTECTED BY THE DOCTOR-PATIENT PRIVILEGE; PARTY STATEMENTS WERE NOT PROTECTED BY THE QUALITY ASSURANCE PRIVILEGE; AND PLAINTIFF WAS ENTITLED TO THE NAMES OF THE DOCTOR’S COWORKERS (FIRST DEPT).
THE TRIAL COURT PROPERLY PRECLUDED DEFENDANTS FROM CALLING PLAINTIFF’S TREATING PHYSICIANS AS WITNESSES IN THIS POLICE EXCESSIVE FORCE CASE BECAUSE OF INADEQUATE NOTICE AND THE TRIAL COURT PROPERLY ACCEPTED PLAINTIFF’S REDACTIONS OF THE MEDICAL RECORDS BECAUSE DEFENDANTS FAILED TO SUGGEST THEIR OWN REDACTIONS (FIRST DEPT).

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