The Second Department affirmed Supreme Court’s vacation of a murder conviction (pursuant to a CPL 440.10 motion) based upon newly discovered evidence. At a hearing, the defendant presented evidence calling into question the testimony of two witnesses who had claimed to have seen the shooting: CPL 440.10(1)(g) provides that a court may vacate a judgment […]
The Second Department noted that a valid waiver of appeal precludes review of the factual sufficiency of a plea allocution, but does not preclude review of a claim of ineffective assistance where the voluntariness of the plea may have been affected: The defendant’s valid waiver of his right to appeal precludes review of his challenge […]
The Second Department, in the interest of justice, reversed defendant’s conviction based on the trial court’s (unpreserved) error in denying defense counsel’s challenge to a juror for cause. (Defense counsel did not challenge the juror on the specific ground raise on appeal): Here, during voir dire, a prospective juror stated, “[j]ust my upbringing tells me […]
The Second Department determined that Supreme Court should have allowed defendant to present evidence (at the SORA hearing) of the victim’s (his daughter’s) recantation of her allegations of sexual abuse, including the testimony of the victim: The Supreme Court erred in precluding the defendant from offering into evidence affidavits from his daughter recanting the underlying […]
In a full-fledged opinion by Judge Read, the Court of Appeals determined “a sentence imposed for ‘simple’ knowing, unlawful possession of a loaded weapon (i.e., without any intent to use) was properly run consecutively to the sentence for another crime committed with the same weapon. [The defendants in these cases] completed the crime of possession […]
The Second Department determined plaintiff should have been awarded prejudgment interest on the principal amount of the damages awarded for breach of contract at the statutory 9% rate, not the contractual 18% rate which was included in the agreed monthly installment payments: …CPLR 5001(a) mandates an award of prejudgment interest on the principal amount of […]
Plaintiff was rear-ended by defendant [Dellapenta] on a clear, windy day when blowing snow caused a temporary whiteout. The jury returned a verdict of no cause for action. The Fourth Department determined the jury was properly given the “sudden stopping” charge and the emergency doctrine: While plaintiff claimed that he was forced to stop due […]
The Fourth Department reversed Supreme Court and granted summary judgment to defendant who was struck when plaintiff’s decedent’s on-coming car crossed into defendant’s lane. The court determined the “Noseworthy” rule (lowering the plaintiff’s burden of proof) did not apply and the emergency doctrine precluded recovery: Under the emergency doctrine, “ ‘when [a driver] is faced […]
The Fourth Department upheld the determination that petitioner’s transfer of property within the 60-month look-back period for Medicaid mandated an approximately fourteen-month delay in Medicaid eligibility (petitioner was in a nursing home, seeking payment of the expenses by Medicaid). The Fourth Department explained the relevant criteria with respect to petitioner’s purchase of a life estate […]
Plaintiff, a subcontractor in an environmental remediation project run by defendant AAA Environmental, sued on behalf of similarly situated subcontractors alleging that the arrangement AAA had with First Niagara Bank violated Lien Law article 3-A. By that arrangement, each night funds from AAA’s operational account would be transferred to AAA’s line of credit account to […]
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