A 17-year pre-indictment delay did not violate defendant’s right to a speedy trial. The Fourth Department wrote: On appeal from a judgment convicting him upon a jury verdict of murder in the second degree (Penal Law § 125.25 [1]), defendant contends that the 17-year preindictment delay violated his constitutional right to a speedy trial.We reject […]
The Fourth Department determined that a “violation of probation” petition need not include non-hearsay allegation establishing every element of the violation charged: …[A]lthough Family Court Act § 360.2 (2) specifically requires that VOP petitions in juvenile delinquency proceedings contain “[n]on[]hearsay allegations . . . establish[ing], if true, every violation charged,” there is no corresponding requirement […]
In a criminal contempt (first degree) case, the Fourth Department determined defendant’s plea colloquy “negated essential elements of the crime to which he pleaded guilty inasmuch as his colloquy indicated that the order of protection was not issued pursuant to the statutory sections set forth in Penal Law [section] 215.51 (c), and that the predicate […]
The Department of Corrections cannot remedy a court’s failure to impose a period of post-release supervision. In this case the prisoner’s habeas corpus petition was granted and the prisoner, who had served his sentence, was released. The Fourth Department determined that the sentencing court’s statement—“the supervisory period under the violent felony offender sentencing statute will […]
The Fourth Department determined the Erie County Executive had the authority to bring a lawsuit alleging fraud on the part of a County Commissioner which resulted in the payment of more than $4,000,000 for goods and services that had not been provided. The defendant contended the County could not bring the suit absent a resolution […]
This breach of contract case concerned the installation of “jet grout bottom seal” at a wastewater treatment plant. In the course of its discussion, the Fourth Department explained the difference between performance and design specification contracts: We … conclude that there are issues of fact concerning whether the contract was one of performance or design […]
The Fourth Department determined a purchase contract which contained a merger clause prohibiting oral modifications and which did not have a provision allowing a pre-closing inspection did not provide the buyer with the right to inspect the property. Under the rules for the interpretation of an unambiguous contract, “ ‘courts should be extremely reluctant to […]
The contract for the sale of a parcel of real property included the following: “It is the understanding of the parties that at the present time, seller is not in title to the property. Seller is a first mortgage holder and the mortgage is in default. In the event that the title holder does not agree […]
In affirming the dismissal of objections to a will, the Fourth Department explained that proof the decedent suffered from old age, infirmity and dementia was not necessarily inconsistent with testamentary capacity, and, where there is direct evidence the decedent had the necessary ability to understand, even medical opinion is of minor importance: “It is the […]
In finding that a co-executor (who could no longer be sued by any of the beneficiaries because all had executed releases) had standing to contest a final accounting submitted by the other co-executor, the Fourth Department wrote: An executor is a fiduciary who owes “a duty of undivided loyalty to the decedent and ha[s] a […]
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