The Third Department determined that a “hose company” was not part of the fire department and thus was not entitled to the payment of tax monies slated for the fire department: The members of Citizens Hose are not trained to perform interior or exterior firefighting and, on the rare occasions when they are paged to […]
In a full-fledged opinion by Judge Smith, the Court of Appeals determined that the failure to file “proof of the facts constituting the claim” (as required by CPLR 3215(f)) in an application for a default judgment is not a jurisdictional defect that renders a default judgment a nullity. The Court wrote: …[T]he word “jurisdiction” is […]
In a full-fledged opinion by Justice Andrias, the First Department determined the amendments to the Sex Offender Registration Act (SORA) did not render the statute punitive and thereby violate the Ex Post Facto Clause or violate the Double Jeopardy prohibition with respect to the defendant: It may be true that subjecting sex offenders to lifetime […]
The First Department determined that the prosecutor’s failure to get court permission to represent a case to a grand jury need not be preserved by objection and required dismissal of the indictment: The failure to obtain court authorization to re-present the charges to a second grand jury implicates the power to prosecute…; thus, defendant was […]
In finding the “exigent circumstances” exception to the search warrant requirement for entry into a private residence applied to the facts, the Third Department explained the criteria as follows: The Court of Appeals has outlined three elements to determine whether exigent circumstances exist to justify entry without a warrant: “(1) The police must have reasonable […]
In a full-fledged opinion by Justice Stein, the Third Department concluded that the sentencing guidelines for youthful offenders do not allow the imposition of a determinate sentence: Penal Law § 60.02 (2) provides, as relevant here, that a sentencing court must impose upon a youthful offender “a sentence authorized to be imposed upon a person […]
The Third Department noted that a challenge to the factual sufficiency of a superior court information must be preserved by objection and does not survive a guilty plea (after indictment). People v Martinez, 104837, 3rd Dept, 5-30-13
The Third Department determined that the relationship between the defendant’s act and a fatal car accident was too attenuated to support a conviction for criminally negligent homicide. The defendant, a passenger, jerked the steering wheel, apparently in an attempt to intimidate or strike a car that was along side of the car defendant was in. […]
The defendant made a pro se motion to withdraw his plea of guilty. In response to the sentencing court’s question, the defendant’s attorney told the court that she saw no legal basis for the motion. The Third Department determined defense counsel acted appropriately in not supporting the pro se motion, but the sentencing court should […]
The Third Department determined one count of an indictment was jurisdictionally defective and the People’s attempt to cure the defect by amendment was prohibited by CPL 200.70, which does not allow amendment to fix the failure to state or charge an offense: Here, count 3 of the indictment charged defendant with conspiracy in the second […]
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