The Third Department determined the SORA court could make a SORA level assessment without a recommendation from the Board of Examiners of Sex Offenders. The facts of the case did not fall into any of the categories listed in the SORA statute which allows an assessment without a Board recommendation when the defendant is not […]
The Third Department determined defendant’s waiver of his right to appeal, which included a written waiver, was not sufficient because it was not clear he understood the waiver was separate and distinct from the rights given up by the guilty plea. The defendant was 21 years old, had no prior criminal history and had some […]
The Third Department determined several counts of reckless endangerment were duplicitous because there was no way for the jury to match each count with specific conduct by the defendant: Here, County Court found that the original indictment, which included seven counts of reckless endangerment, did not provide sufficient information to enable defendant to distinguish each […]
The Third Department determined that the initial detention of the defendant by the police, with guns drawn, did not amount to an illegal arrest: Given the extremely short period of time between the report of the armed robbery and the arrival of the officers on the scene, defendant’s presence alongside the residence and the absence […]
Over a substantial dissent by Judge Rivera, the Court of Appeals, in a full-fledged opinion by Judge Piggot, determined a vehicle search after a DWI arrest, in which an illegal weapon was found, was a valid inventory search. The defendant had argued that the removal of seat panels that were askew and a speaker system […]
The Court of Appeals determined that defendant’s murder conviction should stand, even though he was questioned in violation of his right to counsel: While in jail for a violation of probation (VOP), defendant was twice questioned by police about the victim’s disappearance, the second time after her body had been discovered. Counsel was not present. […]
In affirming the vacation of defendant’s conviction, the Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the defendant did not receive effective assistance of counsel. The People’s case rested on the defendant’s statement. The defense was based on the defendant’s mental weakness, which undermined the voluntariness of the statement. Yet the defense […]
In determining petitioner’s motion was not a motion to resettle because it sought to amend, rather than merely clarify, a judgment, the Third Department explained: [A motion to resettle] is designed “not for substantive changes [in, or to amplify a prior decision of, the court], but to correct errors or omissions in form, for clarification […]
The Third Department explained the appellate review and damages-evidence standards for small claims actions as follows: Appellate review of small claims is limited to determining whether “substantial justice has not been done between the parties according to the rules and principles of substantive law” (UCCA 1807; …); only a clearly erroneous determination will be overturned […]
The Third Department reversed Supreme Court’s annulment of a regulation that permitted out-of-competition drug testing of harness racehorses pursuant to the Racing, Pari-Mutuel Wagering and Breeding Law. In a lengthy decision, the Third Department went through each of Supreme Court’s findings, reversing all but one which annulled the portion of the regulation prohibiting all “protein […]
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