The Third Department used imputed income to determine mother’s ability to contribute to the children’s college education: In determining child support or related expenses, a court may impute income to a parent based on that party’s failure to seek more lucrative employment that is consistent with his or her education, skills and experience … . […]
The Third Department reversed Family Court’s determination that mother’s parental rights should be terminated based upon her mental illness. The psychologist’s (Liotta’s) report, upon which Family Court based its ruling, should not have been admitted in evidence because it included inadmissible hearsay: Pursuant to the professional reliability exception to the hearsay rule, an expert witness […]
Even though the evidence of corroboration of accomplice testimony was sufficient under People v Reome, 15 NY3d 188 [2010], the Court of Appeals held it was not sufficient under the stricter criteria of People v Hudson, 51 NY2d 233 [1980] which Reome overruled. Because the jury was read the Hudson criteria, that criteria applied and […]
The Third Department determined defense counsel’s failure to move to dismiss the indictment on speedy trial grounds constituted ineffective assistance of counsel, requiring that defendant’s motion to withdraw his guilty plea be granted, and the postindictment delay, for which the People had no adequate excuse, required that the indictment be dismissed: A Washington County grand […]
The Third Department reversed County Court and determined leading questions and elicitation of hearsay in the grand jury proceedings did not constitute prosecutorial misconduct: “Dismissal of an indictment pursuant to CPL 210.35 (5) is a drastic, exceptional remedy and should thus be limited to those instances where prosecutorial wrongdoing, fraudulent conduct or errors potentially prejudice […]
The Third Department determined the failure of County Court to set forth the manner and time of the payment of restitution required that the restitution order be vacated and the matter remitted to correct the omissions. Peoplev Durham, 105027, 3rd Dept 10-17-13
The Third Department determined defendant’s guilty plea was invalid (based on the allocution) and vacated it in the absence of a motion to withdraw the plea or vacate the judgment of conviction: As the record before us does not indicate that defendant ever actually entered a guilty plea pursuant to the plea agreement, we reverse. […]
In reversing County Court and dismissing the indictment on speedy trial grounds, the Third Department noted there was no evidence the defense agreed to an adjournment during the period another criminal proceeding against the defendant was ongoing: There is no support in the record for the People’s unsubstantiated claim that “it was agreed and understood” […]
The Third Department determined the People failed to prove that the cocaine seized from the defendant at the police station after his arrest was not the product of the earlier illegal arrest of the defendant (fruit of the poisonous tree). At the Dunaway hearing, the People presented no witnesses concerning the seizure at the police […]
In a full-fledged opinion by Judge Graffeo, the Court of Appeals affirmed the denial of motions to suppress certain statements made by the defendant to the police and to a friend in the presence of the police under the emergency doctrine. [The concurring judge felt the emergency was over when defendant spoke to his friend […]
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