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SENTENCE VACATED AND MATTER REMITTED FOR AN ON-THE-RECORD DETERMINATION WHETHER DEFENDANT IS ELIGIBLE FOR YOUTHFUL OFFENDER STATUS; MANDATORY SURCHARGES AND FEES WAIVED WITH PEOPLE’S CONSENT (SECOND DEPT). ​

The Second Department, vacating defendant’s sentence and the imposition of mandatory surcharges and fees, held Supreme Court failed to determine on the record whether defendant was eligible for youthful offender status:

CPL 720.20(1) requires “that there be a youthful offender determination in every case where the defendant is eligible, even where the defendant fails to request it, or agrees to forego it as part of a plea bargain” … . The Supreme Court was required to determine on the record, with respect to the conviction of attempted assault in the first degree, which constituted an armed felony … , whether the defendant was an eligible youth by considering the presence or absence of the factors set forth in CPL 720.10(3) and, if so, whether he should be afforded youthful offender status … . …

The defendant was convicted before the enactment of CPL 420.35(2-a), which permits the waiver of surcharges and fees for persons who, like the defendant, were less than 21 years old at the time of the subject crime. However, based on the People’s consent, and pursuant to the exercise of our interest of justice jurisdiction, we waive the surcharge and fees imposed on the defendant at sentencing … . People v Johnson, 2021 NY Slip Op 02544, Second Dept 4-28-21

 

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DEFENDANT DID NOT ELIMINATE QUESTIONS OF FACT CONCERNING WHETHER IT HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE ALLEGEDLY DANGEROUS CONDITION IN THIS ESCALATOR SLIP AND FALL CASE, ANY CONFLICT IN PLAINTIFF’S TESTIMONY DID NOT RENDER IT INCREDIBLE AS A MATTER OF LAW, DEFENDANT’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
ALLEGATIONS THAT A POSTNUPTIAL AGREEMENT WAS UNCONSCIONABLE SURVIVED THE MOTION TO DISMISS, THE SUBSTANTIVE AND PROCEDURAL CRITERIA FOR THE DISMISSAL OF COUNTERCLAIMS AND AFFIRMATIVE DEFENSES ALLEGING FRAUD, DURESS, COERCION AND UNCONSCIONABILITY DISCUSSED IN SOME DEPTH (SECOND DEPT).
SELLER DID NOT DEMONSTRATE THE TIME OF THE ESSENCE LETTER GAVE BUYER SUFFICIENT TIME AND DID NOT DEMONSTRATE THE ABILITY TO CLOSE ON THAT DATE, SELLER’S MOTION FOR SUMMARY JUDGMENT IN THIS SPECIFIC PERFORMANCE ACTION PROPERLY DENIED (SECOND DEPT).
MOTHER’S PETITION SEEKING FINDINGS TO ALLOW HER CHILD TO APPLY FOR SPECIAL IMMIGRANT JUVENILE STATUES SHOULD NOT HAVE BEEN DISMISSED, MOTHER WAS NOT REQUIRED TO BE FINGERPRINTED OR TO SUBMIT CERTAIN DOCUMENTATION, JUDGE’S COMMENTS ABOUT THE CHILD’S SPEAKING SPANISH REQUIRED TRANSFER TO A DIFFERENT JUDGE (SECOND DEPT).
THE JURY SHOULD HAVE BEEN TOLD NOT TO CONSIDER THE LESSER INCLUDED OFFENSE IF THE JUSTIFICATION DEFENSE WAS PROVEN FOR THE HIGHER OFFENSE, THE JURY ALSO SHOULD HAVE BEEN INSTRUCTED ON THE ‘TEMPORARY INNOCENT POSSESSION OF A WEAPON’ DEFENSE, JUDGMENT OF CONVICTION REVERSED (SECOND DEPT).
THE $2,000,000 REPLACEMENT INSURANCE POLICY WAS CANCELLED FOR NON-PAYMENT JUST HOURS BEFORE PLAINTIFF WAS STRUCK BY THE INSURED’S CAR, THE FACT THAT A PREMIUM SUFFICIENT FOR THE PRIOR $1,000,000 POLICY HAD BEEN PAID WAS OF NO CONSEQUENCE.

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DEFENDANT’S PLEA ALLOCUTION NEGATED AN ELEMENT OF THE OFFENSE; PRESERVATION... APPEAL DISMISSED BECAUSE DEFENDANT WAS DEPORTED (SECOND DEPT).