The Fourth Department noted that no appeal lies from an order entered upon a default. The only remedy is a motion to vacate the default order: Plaintiff appeals from an order granting the respective motion and cross motions of defendants seeking summary judgment dismissing the second amended complaint against them. It is undisputed that plaintiff […]
The Fourth Department explained that a resentencing which takes place after the original sentence has been completed violates the double jeopardy clause. People v Alvarado, 961, 4th Dept 9-27-13
In remitting the matter to determine whether defendant should be sentenced as a youthful offender, the Fourth Department explained that is was unclear whether the court, as opposed to the prosecutor, made the determination not to afford defendant youthful offender status: “After receipt of a written report of the [preplea or presentence] investigation and at […]
The Fourth Department determined that the persistent felony offender statute did not require that the prior felonies taken into consideration for persistent felon status be equivalent to New York felonies: The persistent felony offender statute … contains no language requiring that the underlying out-of-state conviction be for a crime that would constitute a felony in […]
The Fourth Department determined that the trial judge’s refusal to adjudicate defendant a youthful offender, after a promise to do so, based upon information in the presentence report, constituted an adequate reason and explanation for the refusal: “As a matter of law and strong public policy, a sentencing promise made in conjunction with a plea […]
The Fourth Department determined the police properly searched (frisked) the defendant after a valid vehicle-stop based on his “furtive” behavior: As defendant correctly concedes, the police officer lawfully stopped defendant’s vehicle because it had a broken taillight …, and defendant voluntarily exited the vehicle. Given defendant’s furtive behavior before and after exiting his vehicle, including […]
The Fourth Department reversed the trial court and dismissed the indictment (without prejudice) because the defendant was deprived of his right to testify before the grand jury. The defendant gave notice of his intent to testify and appeared at the right time and place. The defendant signed a waiver of immunity but deleted three paragraphs […]
In upholding the trial judge’s allowing defendant to proceed pro se, the Fourth Department explained the relevant criteria: “A defendant in a criminal case may invoke the right to defend [pro se] provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, […]
The Fourth Department determined defendant was properly resentenced to a determinate sentence without a period of post-release supervision as a remedy for the failure to inform the defendant of the post-release supervision the first time around: …[T]he court properly resentenced defendant pursuant to Penal Law § 70.85 to the original sentence without imposing a period […]
Although the denial of defendant’s suppression motion was affirmed, the Fourth Department noted the trial court erred when it stated the suppression motion must be supported by an affidavit from the defendant and the defendant must deny participation in the alleged crime to warrant a hearing: We agree with defendant that the court erred in […]
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