The Second Department sent the matter back for resentencing because of the sentencing court’s failure to follow the statutory procedure for adjudicating defendant a second felony offender: As the People correctly concede, the sentencing court adjudicated the defendant a second felony offender (see Penal Law § 70.06) absent any indication of compliance with the procedural […]
The Second Department determined defendant’s failure to cooperate with the probation department in violation of his plea agreement was a valid ground for an enhanced sentence: The condition of the defendant’s plea that he cooperate with the probation department was explicit and objective, and was acknowledged, understood, and accepted by the defendant as part of […]
In sending the matter back for resentencing, the Second Department noted that the statutory procedure for sentencing as a persistent felony offender had not been followed: The Supreme Court erred in failing to provide proper notice of the persistent felony offender hearing pursuant to CPL 400.20(1)-(4), and to set forth specific reasons supporting its determination […]
In reversing an Assault 3rd conviction, the Second Department determined, under a weight of the evidence analysis, the proof of “physical injury” was insufficient: Upon reviewing the record here, we find that the verdict of guilt was against the weight of the evidence, since the evidence presented at trial did not establish, beyond a reasonable […]
Under CPLR 3408 (one of the Subprime Residential Loan and Foreclosure Laws enacted in response to the “subprime mortgage crisis”) settlement conferences between the bank and the homeowner are made mandatory. The statute requires that the parties negotiate “in good faith to reach a mutually agreeable resolution, including a loan modification, if possible”… . In […]
In affirming Family Court’s decision to award custody to mother because of the evidence that mother and father could not cooperate, the Second Department wrote: “[J]oint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion” … . “However, joint custody is inappropriate where the parties are […]
After the child’s mother died, petitioner, the child’s maternal aunt, sought custody. In granting the father’s application to dismiss the petition, the Second Department wrote: As between a parent and a nonparent, the parent has a superior right to custody which cannot be denied absent a showing of surrender, abandonment, persisting neglect, unfitness, or other […]
The plaintiff’s vehicle had been struck from behind by one Schwartz. Plaintiff drove his vehicle into Schwartz and left the scene. Plaintiff was charged criminally for those actions. In the personal injury action brought by Schwartz against plaintiff, the defendant insurance company defended plaintiff. A $25,000 judgment was entered against plaintiff. Plaintiff then sued defendant […]
The plaintiffs, in a nuisance action, sought to enjoin the defendants “from maintaining more than one ‘main building’ on the premises, allegedly in violation of the Village Code.” The Second Department, citing the doctrine of primary jurisdiction, ruled that the case for an injunction had not been made out because the plaintiffs never sought a […]
The Second Department determined plaintiffs six-year delay in moving to disqualify an attorney for the defendants on conflict-of-interest grounds constituted a waiver of any objection to the attorney’s participation. The court described the legal analysis as follows: The party seeking to disqualify a law firm or an attorney bears the burden to show sufficient proof […]
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