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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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THE POLICE DID NOT HAVE REASONABLE SUSPICION TO JUSTIFY THE TRAFFIC STOP AND DID NOT HAVE PROBABLE CAUSE TO ARREST AT THE TIME DEFENDANT GOT OUT OF THE CAR; THE STATEMENTS MADE BY DEFENDANT AND THE COCAINE SEIZED FROM HIS PERSON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT).
QUESTIONS OF FACT WHETHER FORGED NOTE AND GUARANTIES WERE RATIFIED (FOURTH DEPT).
SENTENCE MUST BE PRONOUNCED ON EACH COUNT OF THE CONVICTION; SENTENCE VACATED AND REMITTED FOR RESENTENCING (FOURTH DEPT).
NO SHOWING THAT POST TRAUMATIC STRESS DISORDER OR A TRAUMATIC BRAIN INJURY INCREASED THE RISK OF REOFFENSE, APPELLATE DIVISION EXERCISED ITS OWN DISCRETION AND REDUCED DEFENDANT’S RISK LEVEL FROM TWO TO ONE (FOURTH DEPT).
THE ESTATE OF A PARTY TO A SEPARATION AGREEMENT MAY SEEK A DOWNWARD MODIFICATION OF THE AGREED MAINTENANCE PAYMENTS; THE DISSENT ARGUED ONLY THE PARTY, NOT THE ESTATE OF THE PARTY, CAN SEEK A DOWNWARD MODIFICATION AND THE MATTER SHOULD BE HANDLED IN PROBATE (FOURTH DEPT).
Release Which Specifically Refers to a Particular Incident Relates Solely to that Incident—Where Terms of the Release Are Unambiguous, Extrinsic Evidence Will Not Be Considered
THE FACT THAT DEFENDANT WAS PARKED IN A HIGH CRIME AREA NEAR AN APARTMENT COMPLEX AND THE FILED “TRESPASS AFFIDAVIT” BY AN APARTMENT PROPERTY MANAGER, REQUESTING THAT ANYONE ON THE PROPERTY WHO WAS NOT A TENANT BE ARRESTED FOR TRESPASS, DID NOT PROVIDE THE POLICE WITH A “PARTICULARIZED” REASON FOR APPROACHING THE DEFENDANT TO REQUEST INFORMATION; THE COCAINE AND HANDGUN SEIZED UPON THE DEFENDANT’S ARREST SHOULD HAVE BEEN SUPPRESSED; THE INDICTMENT WAS DISMISSED (FOURTH DEPT).
THE MAJORITY CONCLUDED THAT, IF IT WAS ERROR TO ADMIT TESTIMONY THAT THE RAPE VICTIM WAS AWARE DEFENDANT HAD BEEN INCARCERATED, THE ERROR WAS HARMLESS; TWO DISSENTERS ARGUED THE EVIDENCE HAD NO PROBATIVE VALUE BECAUSE THE VICTIM’S STATE OF MIND WAS NOT IN ISSUE AND ITS INTRODUCTION WAS THERFORE HIGHLY PREJUDICIAL (FOURTH DEPT).

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