In affirming the denial of a 440 motion to vacate defendant’s conviction based upon a co-defendant’s affidavit stating the defendant was not involved in the crimes, the Fourth Department wrote: It is well settled that on a motion to vacate a judgment of conviction based on newly discovered evidence, the movant must establish, inter alia, […]
The Fourth Department, over a dissent by two justices, determined the evidence was legally insufficient to support criminal contempt in the first degree: Even assuming, arguendo, that the evidence is legally sufficient to establish that defendant repeatedly made telephone calls to his ex-girlfriend, we agree with him that the evidence is legally insufficient to establish […]
In affirming the denial of a 440 motion by a defendant convicted of murder seeking DNA testing of blood evidence, the Fourth Department wrote: We conclude that the court properly denied that part of the motion seeking testing … “because defendant failed to establish that there was a reasonable probability that, had those items been […]
The Fourth Department reduced defendant’s sentence for criminal possession of stolen property in the third degree from 2 to 7 years to 7 months. The People conceded the original sentence was unduly harsh and severe. People v Raszl, 596, 4th Dept 7-5-13
In affirming the conviction, the Fourth Department explained the criteria for corroboration of accomplice testimony, and the admissible evidence in a restitution hearing: “New York’s accomplice corroboration protection requires only enough nonaccomplice evidence to assure that the accomplices have offered credible probative evidence that connects the accomplice evidence to the defendant”…. Even the most “[s]eemingly […]
Plaintiffs brought an action for injunctive relief against the Board of Regents which had denied the application of plaintiff Pinnacle Charter School to renew its charter. Supreme Court had granted a preliminary injunction and dismissed one cause of action. The Fourth Department reversed the preliminary injunction and dismissed the complaint entirely, including the causes of […]
The Fourth Department modified the Supreme Court’s damages assessment in a case brought by firefighters against the City of Buffalo (and named individuals) “alleging that [the City] discriminated against them by allowing promotional eligibility lists created pursuant to the Civil Service Law to expire solely on the ground that plaintiffs, who were next in line […]
In affirming Supreme Court, which dismissed some causes of action and allowed others to stand, the Fourth Department explained elements of several intentional torts, including malicious prosecution, false arrest, false imprisonment, libel and slander. Malicious prosecution: “The elements of the tort of malicious prosecution are:(1) the commencement or continuation of a criminal proceeding by the […]
The Fourth Department reversed and remitted a visitation proceeding to Family Court because Family Court had relieved assigned counsel, noting that the Fourth Department had recently held respondents in visitation proceedings are entitled to assigned counsel: Family Court erred in relieving his assigned counsel after the modification petition, which sought full legal custody of the […]
The Fourth Department affirmed Family Court’s denial of an incarcerated father’s petition for visitation with his children: Although we recognize that the rebuttable presumption in favor of visitation applies when the parent seeking visitation is incarcerated…, we conclude that respondents rebutted the presumption by establishing by a preponderance of the evidence that visitation with petitioner […]
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