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THE DESIGNATING PETITIONS INCLUDED THE NAMES OF CANDIDATES WHO DID NOT AGREE TO BE LISTED; THE PETITIONS WERE THEREFORE PROPERLY INVALIDATED ON THE GROUND OF FRAUD (SECOND DEPT).

The Second Department determined Supreme Court properly invalidated appellants’ designating petitions because they included the names of candidates who did not consent to be listed on the petitions: … [A] designating petition will be invalidated upon a showing that the entire petition is permeated with fraud … . Here, the petitioners demonstrated by clear and […]

June 17, 2021 /0 Comments/by

SENTENCE MUST BE PRONOUNCED ON EACH COUNT OF THE CONVICTION; SENTENCE VACATED AND REMITTED FOR RESENTENCING (FOURTH DEPT).

The Fourth Department, vacating defendant’s sentence and remitting for resentencing, noted that sentence must be pronounced for each count of the conviction: … County Court erred in failing to “pronounce sentence on each count” of the conviction (CPL 380.20). Although the certificate of conviction states that defendant was sentenced on each count to concurrent terms […]

June 17, 2021 /0 Comments/by

DECEDENT, WHO DIED TESTATE IN 2004, WAS AWARDED COMPENSATION BY CONGRESS IN 2015 BECAUSE HER HUSBAND HAD BEEN HELD IN IRAN AS A HOSTAGE FROM 1979 TO 1981; BECAUSE THE COMPENSATION WAS AWARDED AFTER HER DEATH, IT DOES NOT PASS BY WILL, BUT RATHER BY THE LAWS OF INTESTACY (FOURTH DEPT).

The Fourth Department, reversing Surrogate’s Court, in a full-fledged opinion by Justice Centra, determined the funds awarded by Congress to the decedent, after the decedent’s death, do not pass by decedent’s will, but rather by the laws of intestacy. Decedent, who died in 2004, was the wife of a man held hostage in Iran from […]

June 17, 2021 /0 Comments/by

HUSBAND’S PROCEEDS FROM THE SALE OF STOCK DID NOT LOSE THEIR SEPARATE-PROPERTY CHARACTER WHEN THEY WERE BRIEFLY PLACED IN THE PARTIES’ JOINT BANK ACCOUNT BEFORE BEING USED FOR THE DOWNPAYMENT FOR THE MARITAL RESIDENCE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined funds from the husband’s sale of stock were his separate property, even though the funds were briefly placed in a joint account before using them for the down payment on the marital residence: … [D]efendant offered uncontroverted testimony, supported by documentary evidence, that he placed funds acquired […]

June 17, 2021 /0 Comments/by
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THE ERIE COUNTY SHERIFF’S OFFICE (ECSO) IS NOT A SEPARATE ENTITY APART FROM THE COUNTY; THE COUNTY MAY BE SUED FOR THE ACTIONS OF CIVILIAN EMPLOYEES OF THE SHERIFF’S OFFICE PURSUANT TO RESPONDEAT SUPERIOR; HERE PLAINTIFF ALLEGED PLAINTIFF’S DECEDENT DIED IN HIS CAR AWAITING RESCUE DURING A SNOWSTORM (FOURTH DEPT).

The Fourth Department determined the Erie County Sheriff’s Office (ECSO) is not a separate entity apart from the county, and the county may be liable for the acts of the sheriff’s office’s civilian employees pursuant to respondeat superior. The lawsuit alleged the defendants failed to timely rescue plaintiff’s decedent who died in his car during […]

June 17, 2021 /0 Comments/by

THE COMPLAINT CHARGING FORCIBLE TOUCHING DID NOT ALLEGE THE APPLICATION OF PRESSURE AS AN ELEMENT OF THE TOUCHING RENDERING THE COMPLAINT LEGALLY INSFUFFICIENT (FIRST DEPT).

The First Department, vacating the defendant’s forcible touching conviction, determined the complaint was legally insufficient because it did not allege the application of pressure as an element of the touching: The complaint was legally insufficient to support the forcible touching charge; therefore, with respect to that charge only, the prosecutor’s information was jurisdictionally defective … […]

June 17, 2021 /0 Comments/by

THE SENTENCING COURT CAN LOOK BEYORD THE WORDING OF A FOREIGN STATUTE TO THE CONTENTS OF THE FOREIGN ACCUSATORY INSTRUMENT TO DETERMINE WHETHER A FOREIGN FELONY IS THE EQUIVALENT OF A NEW YORK FELONY RE: SECOND FELONY OFFENDER STATUS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, determined defendant was properly sentenced as a second felony offender even though the Pennsylvania statute at issue did not require knowledge of the precise controlled substance which was possessed. The First Department looked beyond the wording of the statute to the allegations in the accusatory […]

June 17, 2021 /0 Comments/by
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COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENDANT’S COMPLAINTS ABOUT DEFENSE COUNSEL, CONVICTION REVERSED; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, over a two-justice dissent, determined County Court should have conducted a minimal inquiry to address defendant’s complaints about defense counsel. The dissenters argued County Court had, in fact, conducted an adequate inquiry: … [W]e conclude that defendant’s complaints were sufficiently serious to trigger the court’s duty to inquire … […]

June 17, 2021 /0 Comments/by
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IN THE FACE OF DEFENDANT’S AND DEFENSE COUNSEL’S REQUEST FOR NEW COUNSEL, COUNTY COURT COMMITTED REVERSIBLE ERROR BY DENYING THE REQUEST WITHOUT MAKING A MINIMAL INQUIRY (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the court should have conducted in inquiry to evaluate defendant’s complaints about his attorney and his request for new counsel: … [T]he court committed reversible error by failing to conduct an inquiry following defense counsel’s submission of a letter seeking to be relieved from the case and in […]

June 17, 2021 /0 Comments/by
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ALTHOUGH THE ERRORS WERE DEEMED HARMLESS, A POLICE OFFICER SHOULD NOT HAVE BEEN ALLOWED TO IDENTIFY DEFENDANT IN A SURVEILLANCE VIDEO AND POLICE OFFICERS SHOULD NOT HAVE BEEN ALLOWED TO PROVIDE HEARSAY EVIDENCE AS MOLINEUX “BACKGROUND INFORMATION” (FOURTH DEPT).

The Fourth Department determined it was error to allow a police officer to identify the defendant in a surveillance video, and it was error to allow police officers to testify about what they learned from others (hearsay) about defendant’s involvement in the shooting. Although the errors were deemed harmless because of the overwhelming evidence, these […]

June 17, 2021 /0 Comments/by

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