The First Department determined there was no “intent” element to the constructive possession of contraband. The marijuana and stun gun at issue were in an apartment defendant shared with his aunt and nephew. The defendant argued that, even if he was fully aware the items were in the apartment, the People were required to prove […]
The First Department affirmed the dismissal of a complaint alleging defamation and tortious interference with contract. The court explained that the statement made by a management employee was protected by the common interest privilege and only a stranger to a contract can bring a tortious interference claim: Defendant…’s statement that plaintiff was “deliberately sabotaging” defendant[‘s] […]
In affirming Supreme Court’s denial of a motion to dismiss a recoupment affirmative defense, the First Department noted the defense is not extinguished by a bankruptcy sale: The affirmative defense of recoupment is not an “interest” that is extinguishable by a “free and clear” sale under the Bankruptcy Code … . Further * * * […]
In determining the trial court erred in dismissing the indictment based upon the prosecutorial misconduct, the Fourth Department explained: “ ‘[D]ismissal of an indictment under CPL 210.35 (5) must meet a high test and is limited to instances of prosecutorial misconduct, fraudulent conduct or errors which potentially prejudice the ultimate decision reached by the [g]rand […]
The Fourth Department reversed the suppression court and granted defendant’s motion to suppress and dismissed the indictment. The Fourth Department concluded that the evidence of which the police were aware at the time defendant was handcuffed and placed in the back of a police care did not amount to probable cause. A baggie containing drugs […]
The Fourth Department sent the case back to the suppression court for a hearing to determine the admissibility of statements that had not been included in the initial 710.30 notice provided in connection with a prior indictment that had been dismissed. The statements were included in the 710.30 notice provided in connection with the superseding […]
The Fourth Department determined defendant was properly ordered to pay restitution to the police department in a drug case, but that payment of a surcharge should not have been ordered: … [A] defendant convicted of, inter alia, a class C “ ‘felony involving the sale of a controlled substance’ may be ordered to repay a […]
The Fourth Department sent the case back for a determination whether the police had a founded suspicion of criminal activity to justify an inquiry about the presence of drugs of weapons after a traffic stop: We agree with defendant that Supreme Court erred in refusing to suppress the gun recovered from the vehicle based upon […]
The Fourth Department reversed defendant’s conviction, finding error in the trial court’s ruling evidence of prior bad acts was admissible: Before the trial, the court granted the People’s motion to present Molineux evidence for the limited purpose of proving the absence of mistake in defendant’s possession of the forged checks (see People v Molineux, 168 […]
The Fourth Department reversed defendant’s conviction finding the trial court committed a mode of proceedings error in responding to a jury note. The judge instructed the jury in the jury room outside the presence of the defendant. In addition, the Fourth Department found fault with the procedure used by the trial court to address the […]
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