You are here: / HEARING OFFICER’S FAILURE TO GATHER EVIDENCE REQUESTED BY THE PETITIONER...

Search Results

/ ,

HEARING OFFICER’S FAILURE TO GATHER EVIDENCE REQUESTED BY THE PETITIONER DEPRIVED PETITIONER OF A FAIR HEARING, DETERMINATION ANNULLED.

The Second Department determined several failures to gather proof requested by the inmate (petitioner) deprived petitioner of a fair disciplinary hearing. The determination was annulled and the violation expunged. The hearing officer, inter alia: (1) failed to retrieve a document which could have supported the petitioner’s claim he was not served with the proper disciplinary papers; (2) failed to ascertain the identity of the confidential informant who claimed a weapon was in petitioner’s cell; and (3) failed to ask a witness (petitioner claimed the witness planted the weapon) relevant questions posed by the petitioner:

Considering all of these circumstances, the petitioner did not receive a fair hearing … . While a prison inmate facing a disciplinary hearing is not entitled to the same level of due process as a criminal defendant, there are minimum standards that must be met … . Here, since the petitioner did not receive a fair hearing, the minimum due process standard was not met … . Matter of Harvey v Prack, 2016 NY Slip Op 06497, 2nd Dept 10-5-16

 

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER’S FAILURE TO GATHER EVIDENCE REQUESTED BY THE PETITIONER DEPRIVED PETITIONER OF A FAIR HEARING, DETERMINATION ANNULLED)/EVIDENCE (DISCIPLINARY HEARINGS, INMATES, (HEARING OFFICER’S FAILURE TO GATHER EVIDENCE REQUESTED BY THE PETITIONER DEPRIVED PETITIONER OF A FAIR HEARING, DETERMINATION ANNULLED)

/ ,

15-YEAR PERIOD DURING WHICH DEFENDANT DID NOT REOFFEND IS A GROUND FOR A DOWNWARD DEPARTURE IN SETTING THE SORA RISK LEVEL.

The Second Department determined defendant was entitled to a downward departure based upon a 15-year period during which defendant did not reoffend. Defendant’s SORA risk level was reduced from three to two:

In light of the purpose of SORA, which is to assess the risk that the offender poses while at liberty, lengthy periods during which the defendant has been at liberty after the offense are significant in determining the risk of reoffense and the danger posed in the event of reoffense …  . Since these periods are not taken into account in the risk assessment instrument (hereinafter the RAI), they are a permissible ground for departure … . Here, the defendant committed a sex offense in New Jersey in 1982. In the time between that crime and the SORA hearing, which was held in 2012, after the defendant returned to New York, he was incarcerated in New Jersey for approximately 15 years, and he was also at liberty for approximately the same amount of time without reoffending. In light of the lengthy amount of time without reoffense, we conclude that the RAI overstated the defendant’s risk of reoffense. People v Sotomayer, 2016 NY Slip Op 06482, 2nd Dept 10-5-16

CRIMINAL LAW (15-YEAR PERIOD DURING WHICH DEFENDANT DID NOT REOFFEND IS A GROUND FOR A DOWNWARD DEPARTURE IN SETTING THE SORA RISK LEVEL)/SEX OFFENDER REGISTRATION ACT (SORA) (15-YEAR PERIOD DURING WHICH DEFENDANT DID NOT REOFFEND IS A GROUND FOR A DOWNWARD DEPARTURE IN SETTING THE SORA RISK LEVEL)

/ ,

SEARCH OF BRIEFCASE FOUND NEAR DEFENDANT UPON ARREST WAS NOT A VALID SEARCH INCIDENT TO ARREST AND WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES; EVIDENCE OF ROBBERY FOUND IN THE BRIEFCASE SHOULD HAVE BEEN SUPPRESSED.

 

The Second Department, reversing Supreme Court, determined there were no exigent circumstances justifying the warrantless search of a briefcase found on a parked car near where defendant was arrested. Defendant was identified by a store clerk as the person who had just robbed him at gunpoint and a loaded gun was found on defendant’s person upon arrest:

Because “[a]ll warrantless searches presumptively are unreasonable per se, . . . [w]here a warrant has not been obtained, it is the People who have the burden of overcoming this presumption of unreasonableness” … . Under the New York State Constitution, an individual’s right of privacy in his or her personal effects dictates that a warrantless search incident to arrest be deemed unreasonable unless (1) it satisfies certain “spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest” and (2) it is justified by the presence of exigent circumstances … . “Exigency must be affirmatively demonstrated” … . Exigent circumstances may be established by a showing that the search was necessary to ensure the safety of the public or the arresting officer, or that it was necessary to prevent the destruction or concealment of evidence … .

Contrary to the Supreme Court’s determination, the search of the briefcase was not justified as a search incident to a lawful arrest. The People failed to present evidence establishing exigent circumstances at the time of the arrest that would justify the search. The arresting officer did not claim that he searched the briefcase out of concern for the safety of himself or the public and, in any event, the circumstances did not support a reasonable belief that the briefcase contained a weapon … . Additionally, the officer did not claim that he searched the briefcase to prevent the defendant from destroying evidence and, in any event, the facts do not support such a claim. Moreover, despite the People’s contention to the contrary, the error was not harmless, as it cannot be said that there was no significant probability that the jury would have acquitted the defendant of robbery in the first degree had it not been for the error … . People v Houston, 2016 NY Slip Op 06510, 2nd Dept 10-5-16

 

CRIMINAL LAW (SEARCH OF BRIEFCASE FOUND NEAR DEFENDANT UPON ARREST WAS NOT A VALID SEARCH INCIDENT TO ARREST AND WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES; EVIDENCE OF ROBBERY FOUND IN THE BRIEFCASE SHOULD HAVE BEEN SUPPRESSED)/EVIDENCE (CRIMINAL LAW, SEARCH OF BRIEFCASE FOUND NEAR DEFENDANT UPON ARREST WAS NOT A VALID SEARCH INCIDENT TO ARREST AND WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES; EVIDENCE OF ROBBERY FOUND IN THE BRIEFCASE SHOULD HAVE BEEN SUPPRESSED)/SUPPRESSION (SEARCH OF BRIEFCASE FOUND NEAR DEFENDANT UPON ARREST WAS NOT A VALID SEARCH INCIDENT TO ARREST AND WAS NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES; EVIDENCE OF ROBBERY FOUND IN THE BRIEFCASE SHOULD HAVE BEEN SUPPRESSED)

/ , , ,

SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS.

The Second Department, although agreeing with Supreme Court that aspects the damages award in this medical malpractice case were excessive, determined Supreme Court did not have the power to simply reduce the damages amounts. Rather, Supreme Court should have granted the motion to set aside the verdict and ordered a new trial unless the parties stipulate to the reduced damages:

… [I]t was procedurally improper for the Supreme Court to enter a judgment reducing the awards for future medical care, future medications, future physical and occupational therapy from age 21, future speech therapy from age 21, future medical equipment, future medical supplies, future loss of earning capacity, past pain and suffering, and future pain and suffering without granting a new trial on those issues unless the plaintiffs stipulated to reduce the verdict … . Reilly v St. Charles Hosp. & Rehabilitation Ctr., 2016 NY Slip Op 06485, 2nd Dept 10-5-16

CIVIL PROCEDURE (SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)/NEGLIGENCE (MEDICAL MALPRACTICE, SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)/MEDICAL MALPRACTICE (SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)/DAMAGES (MEDICAL MALPRACTICE, SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)/VERDICT, MOTION TO SET ASIDE (SUPREME COURT SHOULD HAVE ORDERED A NEW TRIAL UNLESS THE PARTIES STIPULATE TO REDUCED DAMAGES AWARDS; SUPREME COURT DID NOT HAVE TO POWER TO SUA SPONTE REDUCE THE DAMAGES AMOUNTS)

/

SENTENCE FOR CONSPIRACY COUNT OF AN INDICTMENT SHOULD HAVE BEEN IMPOSED CONCURRENTLY WITH SENTENCES FOR OVERT ACTS WITH WHICH DEFENDANT HAD PREVIOUSLY BEEN CHARGED IN A SUPERIOR COURT INFORMATION.

The Second Department determined the sentences imposed for conspiracy and criminal possession of a controlled substance should run concurrently, not consecutively. The possession offenses, charged in a superior court information (SCI) to which defendant pled guilty, were the overt acts charged in the conspiracy count of a subsequent indictment:

As charged here, the underlying crimes were criminal possession of a controlled substance in the second degree and criminal sale of a controlled substance in the second degree. The offenses of criminal possession of a controlled substance in the third and fourth degrees, to which the defendant pleaded guilty as charged under the SCI, were based on the same acts charged, in the indictment, as overt acts committed in furtherance of the conspiracy in the second degree count. As such, the actus reus of each of the offenses charged in the SCI was, by definition, “a material element” of the offense charged in the indictment … . Since the People failed to establish the legality of consecutive sentences by showing that the acts committed by the defendant were separate and distinct acts … , the County Court should have directed that the sentence imposed under the indictment run concurrently with the sentences imposed under the SCI. People v Rifino, 2016 NY Slip Op 06513, 2nd Dept 10-5-16

CRIMINAL LAW (SENTENCE FOR CONSPIRACY COUNT OF AN INDICTMENT SHOULD HAVE BEEN IMPOSED CONCURRENTLY WITH SENTENCES FOR OVERT ACTS WITH WHICH DEFENDANT HAD PREVIOUSLY BEEN CHARGED IN A SUPERIOR COURT INFORMATION)/SENTENCING (SENTENCE FOR CONSPIRACY COUNT OF AN INDICTMENT SHOULD HAVE BEEN IMPOSED CONCURRENTLY WITH SENTENCES FOR OVERT ACTS WITH WHICH DEFENDANT HAD PREVIOUSLY BEEN CHARGED IN A SUPERIOR COURT INFORMATION)

/

CONDOMINIUM UNIT OWNER HAS RIGHT TO INSPECT AND MAKE PAPER AND ELECTRONIC COPIES OF CONDOMINIUM RECORDS; CONDOMINIUM BOARD MEMBERS CANNOT BE SUED INDIVIDUALLY FOR NONFEASANCE BUT CAN BE SUED IN THEIR OFFICIAL CAPACITIES.

The First Department determined plaintiff, an owner of condominium unit, had the right to inspect and make paper and electronic copies of condominium records. The court further ruled that members of the condominium board could not be held personally liable for actions which amounted only to nonfeasance:

Condominium unit owners’ inspection rights are not governed by Business Corporation Law § 624, as condominium associations, unlike cooperative apartment corporations, are generally unincorporated. Rather, Real Property Law § 339-w governs the statutory inspection rights of condominium unit owners, and grants unit owners the right to examine “records . . . of the receipts and expenditures arising from the operation of the property,” as well as “the vouchers authorizing [such] payments,” during “convenient hours of weekdays.” Real Property Law § 339-w further provides: “A written report summarizing such receipts and expenditures shall be rendered by the board of managers to all unit owners at least once annually.” * * *

… [A]lthough defendants are correct that the board does not have an obligation to mail or email to plaintiff copies of monthly financial reports, building invoices, redacted legal invoices, or board meeting minutes, plaintiff’s right to examine these records at the managing agent’s office, during convenient weekday hours, includes the right to create paper copies or electronic copies at her own expense during her inspection.  * * *

Here, plaintiff merely alleges that the board did not honor her inspection rights and failed to respond adequately to her complaints of noise emanating from an adjacent apartment. These allegations amount only to mere nonfeasance for which the board members cannot be held individually liable. Plaintiff’s conclusory allegation that the board ignored her noise complaints to retaliate against her for other disputes does not suffice to transform the claim into one for affirmative tortious misconduct. We note, however, that the claims will proceed against the board members in their official capacities. Pomerance v McGrath, 2016 NY Slip Op 06462, 1st Dept 10-4-16

 

REAL PROPERTY LAW (CONDOMINIUM UNIT OWNER HAS RIGHT TO INSPECT AND MAKE PAPER AND ELECTRONIC COPIES OF CONDOMINIUM RECORDS; CONDOMINIUM BOARD MEMBERS CANNOT BE SUED INDIVIDUALLY FOR NONFEASANCE BUT CAN BE SUED IN THEIR OFFICIAL CAPACITIES)/CONDOMINIUMS (CONDOMINIUM UNIT OWNER HAS RIGHT TO INSPECT AND MAKE PAPER AND ELECTRONIC COPIES OF CONDOMINIUM RECORDS; CONDOMINIUM BOARD MEMBERS CANNOT BE SUED INDIVIDUALLY FOR NONFEASANCE BUT CAN BE SUED IN THEIR OFFICIAL CAPACITIES)

/ ,

STORM IN PROGRESS RULE RELIEVED DEFENDANTS OF RESPONSIBILITY FOR TRACKED IN WATER; EVIDENCE OF ROUTINE MAINTENANCE SCHEDULE COUPLED WITH PLAINTIFF’S OBSERVATIONS SHORTLY BEFORE THE ACCIDENT DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF URINE ON FLOOR.

The First Department determined the storm in progress rule relieved defendants of responsibility for tracked in water during a snow storm. With respect to a second accident alleged in the complaint (slipping on urine on the building floor) the court held that evidence of the daily maintenance routine, coupled with plaintiff’s testimony she did not see urine on the floor on the afternoon of the accident (which occurred at 6:30 or 7 pm), demonstrated the defendants did not have constructive notice of the condition:

Here, plaintiff testified that ten or fifteen minutes before her first accident, she saw that it was snowing. Thus, any issue concerning whether defendants made reasonable efforts to remedy the wet condition on the steps of the entry vestibule was beside the point since they had no duty to correct the ongoing problem of pedestrians tracking water into the vestibule, until a reasonable time after the storm ended … .

With respect to plaintiff’s second accident in the building, the court properly concluded that defendants demonstrated prima facie the absence of actual or constructive knowledge of urine on the second floor platform based on the testimony of the superintendent that he inspected daily, mopped three times a week, and swept the stairs every day. Plaintiff also testified that she did not see the urine on the afternoon before her 6:30 p.m. or 7 p.m. accident, and was unaware of any complaints of a recurring moisture condition on the platform… . Rosario v Prana Nine Props., LLC, 2016 NY Slip Op 06431, 1st Dept 10-4-16

NEGLIGENCE (STORM IN PROGRESS RULE RELIEVED DEFENDANTS OF RESPONSIBILITY FOR TRACKED IN WATER; EVIDENCE OF ROUTINE MAINTENANCE SCHEDULE COUPLED WITH PLAINTIFF’S OBSERVATIONS SHORTLY BEFORE THE ACCIDENT DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF URINE ON FLOOR)/EVIDENCE (SLIP AND FALL, STORM IN PROGRESS RULE RELIEVED DEFENDANTS OF RESPONSIBILITY FOR TRACKED IN WATER; EVIDENCE OF ROUTINE MAINTENANCE SCHEDULE COUPLED WITH PLAINTIFF’S OBSERVATIONS SHORTLY BEFORE THE ACCIDENT DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF URINE ON FLOOR)/SLIP AND FALL (STORM IN PROGRESS RULE RELIEVED DEFENDANTS OF RESPONSIBILITY FOR TRACKED IN WATER; EVIDENCE OF ROUTINE MAINTENANCE SCHEDULE COUPLED WITH PLAINTIFF’S OBSERVATIONS SHORTLY BEFORE THE ACCIDENT DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF URINE ON FLOOR)/STORM IN PROGRESS RULE (STORM IN PROGRESS RULE RELIEVED DEFENDANTS OF RESPONSIBILITY FOR TRACKED IN WATER)/ROUTINE MAINTENANCE SCHEDULE (EVIDENCE OF ROUTINE MAINTENANCE SCHEDULE COUPLED WITH PLAINTIFF’S OBSERVATIONS SHORTLY BEFORE THE ACCIDENT DEMONSTRATED DEFENDANTS DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF URINE ON FLOOR)

/

PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF FELL 13 OR 14 FEET FROM THE BACK OF A FLATBED TRUCK.

The First Department, over an extensive dissent, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) cause of action stemming from a fall of 13 to 14 feet from the back of a flatbed truck. Plaintiff was standing on top of steel beams, securing the beams with a cable (to be hoisted by crane off the truck), when he fell. The dissent argued plaintiff did not demonstrate he could have been provided with any kind of safety equipment which would have prevented the fall. Plaintiff was wearing a safety harness, but the harness was not tied off:

The motion court correctly determined that defendants, other than Metropolitan Steel, were liable under Labor Law § 240(1) for plaintiff’s injuries because they failed to provide plaintiff with an adequate safety device to prevent his fall from steel beams placed on a flatbed trailer. … [D]efendants’ contention that the accident is outside the scope of Labor Law § 240(1) is without merit, because plaintiff’s fall from a height of 13 or 14 feet above the ground “constitutes precisely the type of elevation-related risk envisioned by the statute” … . The fact that plaintiff did not ask for a specific safety device prior to the accident is not dispositive and is not a prerequisite for recovery under Labor Law § 240(1) … . Plaintiff has met his burden of showing that his fall resulted from the lack of a safety device and is, therefore, entitled to summary judgment on liability (see Phillip v 525 E. 80th St. Condominium, 93 AD3d 578, 579 [1st Dept 2012] [the plaintiff entitled to summary judgment where evidence showed that the plaintiff, who fell while unloading scaffolding material from the flatbed of a truck, was provided with a safety harness, but there was no place where the harness could be secured]). Myiow v City of New York, 2016 NY Slip Op 06461, 1st Dept 10-4-16

LABOR LAW-CONSTRUCTION LAW (PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF FELL 13 OR 14 FEET FROM THE BACK OF A FLATBED TRUCK)/FLATBED TRUCK (LABOR LAW, PLAINTIFF ENTITLED TO SUMMARY JUDGMENT ON LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF FELL 13 OR 14 FEET FROM THE BACK OF A FLATBED TRUCK)

/ ,

STATEMENTS BY SHOOTING VICTIM SHOULD NOT HAVE BEEN ADMITTED AS DYING DECLARATIONS BECAUSE THEY REFLECTED SPECULATION, NOT FACTS; WHETHER STATEMENTS ARE DYING DECLARATIONS IS NOT A JURY QUESTION.

The First Department, reversing defendants’ convictions, determined statements made by the shooting victim should not have been admitted as dying declarations because the statements reflected speculation, not facts. Whether the statements were admissible as dying declarations was not a question of fact for the jury. The defendants were not present at the shooting. The prosecution was based upon the theory the defendants hired the shooter:

… [W]e reverse the judgments and order a new trial because the court erred in admitting, as dying declarations, the victim’s statements implicating defendants, since they were his “mere expression of belief and suspici[ons]” that defendants were involved in his shooting rather than “statements of facts to which a living witness would have been permitted to testify, if placed upon the stand” … . Although the dying declarant may accuse his or her killer in conclusory language, “[t]he declaration is kept out if the setting of the occasion satisfies the judge, or in reason ought to satisfy him [or her], that the speaker is giving expression to suspicion or conjecture, and not to known facts” … .

… Contrary to the People’s argument, the question of what the victim was referring to when he implicated these defendants was not a proper jury question, nor did the lack of specificity merely go to the weight to be accorded this evidence.

The admission of the statements, which was over defendants’ timely and specific objection, was not harmless. Although some facts that may have led the victim to suspect that defendants were involved in his murder were part of the trial evidence, there was nothing to prevent the jury from speculating that the victim was privy to other information, outside the record, connecting defendants to the crime. We also note that the jury, which issued several deadlock notes during its very lengthy deliberations, twice requested to hear the dying declaration evidence. People v Gumbs, 2016 NY Slip Op 06424, 1st Dept 10-4-16

CRIMINAL LAW (STATEMENTS BY SHOOTING VICTIM SHOULD NOT HAVE BEEN ADMITTED AS DYING DECLARATIONS BECAUSE THEY REFLECTED SPECULATION, NOT FACTS; WHETHER STATEMENTS ARE DYING DECLARATIONS IS NOT A JURY QUESTION)/EVIDENCE (CRIMINAL LAW, STATEMENTS BY SHOOTING VICTIM SHOULD NOT HAVE BEEN ADMITTED AS DYING DECLARATIONS BECAUSE THEY REFLECTED SPECULATION, NOT FACTS; WHETHER STATEMENTS ARE DYING DECLARATIONS IS NOT A JURY QUESTION)/DYING DECLARATIONS (CRIMINAL LAW, (STATEMENTS BY SHOOTING VICTIM SHOULD NOT HAVE BEEN ADMITTED AS DYING DECLARATIONS BECAUSE THEY REFLECTED SPECULATION, NOT FACTS; WHETHER STATEMENTS ARE DYING DECLARATIONS IS NOT A JURY QUESTION)

/ , , ,

HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT’S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION.

The First Department determined defendant’s motion to vacate his conviction (by guilty plea), based upon defense counsel’s failure to advise defendant of the possibility of deportation, should not have been denied without a hearing. The decision includes a concise yet complete summary of the federal and state criteria for ineffective assistance and the burdens of proof re: a motion to vacate a conviction by plea. The court noted that credibility questions, here whether defendant’s claim he would have rejected the plea had he known of the risk of deportation, can only be resolved by a hearing:

The issue before us thus turns on whether counsel’s lack of advice on the deportation consequences of defendant’s guilty plea resulted in sufficient prejudice to warrant the withdrawal of his guilty plea. In order to prevail, a defendant must demonstrate a “reasonable probability that, [had counsel properly advised him of the implication of his plea on his immigration status], he would not have pleaded guilty and would have insisted on going to trial” … . … [D]efendant alleges that he would have gone to trial, despite its hazards and the potentially significant incarceration that a conviction would entail, had he been advised he would be deported. Although to have done so would have meant the rejection of “the very beneficial deal” his counsel had negotiated, the motion court erred in finding that defendant’s claim was not “credible,” given the length of time defendant resided legally in the United States, and the other factors raised in his motion papers. Such credibility determinations should be made only after a hearing … . People v Samuels, 2016 NY Slip Op 06423, 1st Dept 10-4-16

CRIMINAL LAW (HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT’S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)/ATTORNEYS (INEFFECTIVE ASSISTANCE, HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT’S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)/INEFFECTIVE ASSISTANCE (HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT’S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)/EVIDENCE (CRIMINAL LAW, MOTION TO VACATE CONVICTION, HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT’S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)/VACATE CONVICTION, MOTION TO (HEARING ON MOTION TO VACATE CONVICTION REQUIRED TO DETERMINE THE CREDIBILITY OF DEFENDANT’S CLAIM HE WOULD HAVE REJECTED THE PLEA BARGAIN HAD HE KNOWN OF THE RISK OF DEPORTATION)

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