Resentencing was required where the sentencing judge indicated the five-year post-release supervision was mandatory. There was, however, an applicable exception to the five-year rule which the judge had the discretion to impose. (Penal Law section 70.45 former [2]). People vs Whitmore, 104652 Third Dept. 2-14-13
The Third Department described the proper procedure for a petition for the modification of a SORA level pursuant to Correction Law section 168-o. Both an updated recommendation of the Board of Examiners and a hearing are required. People vs Hazen, 514028 Third Dept. 2-14-13
A written agreement concerning a “success fee” and real estate broker’s commissions was deemed unenforceable as vague, “since the agreement fails to set the price or compensation to be received…”. Magnum Real Estate Services, Ind. Vs 133-134-135 Associates, LLC, 8058, 107850/06 First Dept. 2-14-13
The Third Department applied the “relation back” doctrine (see CPLR 203(f)) to allow the amendment of a complaint to include causes of action that otherwise would have been time-barred. US Bank National Association vs Gestetner, et al, 514808 Third Dept. 2-14-13
The Third Department held that a reversal of the NYS Office of Victim Services determination was required because the respondent Office heard the testimony of two witnesses in the absence of the petitioner, thereby depriving her of her right to cross-examine witnesses, a right which applies to a quasi-judicial administrative hearing. Matter of Barber vs […]
“The doctrine of collateral estoppel is applicable to determinations of quasi-judicial administrative agencies such as the” Workers’ Compensation Board with respect to “findings of fact that are necessary for an administrative agency to reach.” Here the Workers’ Compensation Board’s determination of the duration of the work-related injury was given preclusive effect in a related personal […]
A zoning measure that prohibited check cashing establishments in a town’s business district was invalid. Zoning is concerned with the use of the land, not with the identity of the user. The Town did not try to show and did not argue that check cashing services are in the same category as “adult entertainment” uses […]
This case, which was not affected by the 2010 amendment to Family Court Act section 451(2)(a), includes a clear discussion of the criteria for an upward modification of a child support obligation where a party is seeking to modify “a child support provision derived from an agreement or stipulation incorporated but not merged into a […]
A finding of neglect based upon the respondent’s allowing the mother of the children to drive with the children when she was intoxicated (.10%) was affirmed by the Third Department. Matter of Darcy Y., 514430 Third Dept. 2-14-13
In a case based upon allegations the defendant assaulted his wife in a jealous rage, the trial judge allowed evidence of a prior crime to prove the “identity” of the perpetrator pursuant to the Molineux rule. The Second Department, in a prior decision, reversed the conviction finding that the perpetrator’s identity was not an issue […]
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