The First Department determined the SORA court improperly assessed 15 points for violence because there was insufficient evidence of physical injury: The court erred in assessing 15 points under the risk factor for use of violence, because the People did not meet their burden of establishing, by clear and convincing evidence, that defendant caused physical […]
In determining the search of defendant’s backpack was unlawful because there were no exigent circumstances to justify it, the First Department wrote: The search of defendant’s backpack following his arrest was unlawful because he was handcuffed at the time of the search and it was no longer in his control…. The contents of the backpack, […]
The Court of Appeals, in a full-fledged opinion by Judge Smith, determined the trial court erred in ruling defense counsel could not argue to the jury that a witness should have been called by the People because defense counsel did not request a missing witness charge (the error was, however, deemed harmless). The complainant’s statement […]
In a full-fledged opinion by Judge Graffeo, the Court of Appeals affirmed defendant’s conviction, rejecting the defendant’s argument he had been denied effective assistance of counsel because of defense counsel’s conflict of interest. The Court of Appeals described the difference between an actual conflict of interest (which mandates reversal if not waived) and a potential […]
In a full-fledged opinion by Chief Judge Lippman, the Court of Appeals determined an 8-hour break and the presence of counsel, after a 491/2-hour custodial interrogation, did not render his confession to murder voluntary and reversed his conviction: We are unwilling to draw the inference, which the People would have us make, that the eight-hour […]
The Court of Appeals, in a full-fledged opinion by Chief Judge Lippman, determined that the retroactive changes in the Empire Zones Program (restricting the availability of tax credits) did not, as the appellate divisions held, violate the Takings Clause, but did violate the Due Process Clause: The Court wrote: The purported taking here is plaintiffs’ […]
In affirming the dismissal of the action on forum non conveniens grounds, the First Department described the criteria and relevant facts as follows: The doctrine of forum non conveniens, as codified under CPLR 327, permits a court to stay or dismiss an action “where it is determined that the action, although jurisdictionally sound, would be […]
In the course of a decision awarding partial summary judgment to the defendant, the Third Department noted that “this Court has the authority to grant summary judgment to a nonappealing party” and did so with regard to a nonappealing defendant as well. Shree Shiv Shakti Corp… v Khalid Properties, LLC, 515810, 3rd Dept 5-30-13
The First Department affirmed Supreme Court’s precluding plaintiff from offering any evidence and/or testimony at trial in opposition to defendants’ defenses and counterclaims stemming from plaintiff’s discarding a computer containing crucial evidence: Plaintiff’s conduct evinces a higher degree of culpability than mere negligence…. Indeed, the record shows that, despite numerous court orders and the court’s […]
The Second Department noted that the statute of limitations provisions for fraud are applied to forgery: Contrary to the plaintiff’s contention, the statute of limitations for a fraud cause of action applies to a cause of action alleging forgery … .The statute of limitations for a fraud-based cause of action requires that the action be […]
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