In a writ of coram nobis proceeding, the issue was whether the trial court’s handling of notes sent out by the jury during deliberations violated Criminal Procedure Law 310.30. Because the record did not clearly indicate the contents of some of the notes, and therefore it was impossible to determine whether the court’s “core responsibilities” […]
In a full-fledged opinion by Justice Fahey, the Fourth Department determined that the Attorney General’s Medicaid Fraud Control Unit was authorized, pursuant to Executive Law 63, to prosecute the defendants, who provided federal Medicare services exclusively but received payment from both Medicare and Medicaid. In addition, the Fourth Department determined that the federal statute which […]
On a writ of coram nobis, the Fourth Department determined the failure to inform defendant of the People’s appeal of the trial court’s dismissal of the indictment required that the writ be granted. The Fourth Department wrote: “It is well settled that criminal defendants are entitled under both the Federal and State Constitutions to effective […]
The Fourth Department determined a juvenile delinquency petition was jurisdictionally defective because it included only the conclusory allegation that the juvenile possessed Adderall without any evidentiary facts to support it: The petition alleged that respondent knowingly and unlawfully sold a controlled substance, i.e., Adderall (see Penal Law § 220.31).The Court of Appeals has made clear […]
The Fourth Department determined drugs seized from defendant’s person incident to his arrest should have been suppressed because defendant’s warrantless arrest took place in his home in the absence of exigent circumstances. The court also noted that the search and seizure of a package from Paraguay addressed to defendant did not violate defendant’s constitutional rights […]
In determining “exigent circumstances” did not exist and therefore the entry of the defendant’s home without a warrant was not justified, the Fourth Department wrote: Factors to consider in determining whether exigent circumstances exist are “(1) the nature and degree of urgency involved and the amount of time needed to obtain a warrant; (2) a […]
In determining the sentencing court had erroneously imposed consecutive sentences for offenses arising out of the same incident, the Fourth Department wrote: “[S]entences imposed for two or more offenses may not run consecutively:(1) where a single act constitutes two offenses, or (2) where a single act constitutes one of the offenses and a material element […]
In a second trial, the defendant moved to preclude the prosecution from introducing evidence of two assaults which were the subjects of acquittals in the first trial. The trial court allowed evidence of the two assaults. On appeal the defendant argued that evidence of the assaults of which she was acquitted was precluded by the […]
Over two dissents, the Fourth Department determined the argument that a probation officer’s affidavit was not sufficient to justify a 10% surcharge must be preserved for appeal. The Fourth Department wrote: We disagree with our dissenting colleagues that the issue whether a surcharge of 10% is properly imposed does not require preservation. While this Court […]
In an article 78 action challenging the prohibition (by the Buffalo Fiscal Stability Authority) of the implementation of a wage increase pursuant to a collective bargaining agreement, the Fourth Department noted that the dismissal of an action as time-barred is a determination on the merits for res judicata purposes: “It is well established that a […]
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