Because the defendant resembled a “mug shot” of a wanted person, the police had the right to approach him to request information. Because the defendant was in an area the wanted person was known to frequent, the police had the common-law right to inquire. The defendant’s flight provided reasonable suspicion to pursue and stop him. […]
The Second Department determined the “zone of danger” theory of recovery for witnessing the death of someone in the plaintiff’s “immediate family” did not allow recovery for witnessing the death of a man, not plaintiff’s biological father, who was the only person plaintiff had ever known as a father figure. Thompson vs Dhaiti, 2011-11215, Index […]
When an insured settles with a tortfeasor in violation of a condition requiring his or her insurer’s written consent to settle, and fails to preserve the insurer’s subrogation rights, the insurer is prejudiced, and the insured is prohibited from asserting a claim for underinsured motorist benefits …”. Matter of Travelers Home and Marine Insurance Company […]
In a prison disciplinary proceeding, the hearing officer’s refusal to provide the inmate with the instructions for the operation of the machine which was used to test his urine for the presence of drugs required annulment of the determination the prisoner had used a controlled substance. Matter of Marshall vs Fischer, 2012-01538, Index No. 6260/11 […]
Proof was insufficient to demonstrate “drug or alcohol abuse” under the SORA guidelines. The SORA assessment was therefore improper. People vs. Palmer, People vs Long, Nos. 14 & 15, CtApp, 2-12-13
…[T]he consecutive nature of defendant’s sentence pursuant to Penal Law [section] 70.25 (2-a) is a collateral consequence of his conviction. …[T]he failure of the trial court to address the impact of Penal Law [section] 70.25 (2-a) during the plea colloquy does not require vacatur of the plea.” People vs Belliard, No. 5, CtApp 2-12-13
The Fourth Department reversed defendant’s conviction because his attorney had a conflict of interest. The attorney had represented someone who was heard on a recording talking to the defendant. The People sought to introduce the recording in evidence to prove defendant’s motive and intent for the charged burglary. The Fourth Department explained the procedure and […]
Although the victim was shot in the chest and arm, the Fourth Department determined there was insufficient evidence of serious physical injury and reduced the Assault 1st conviction to Attempted Assault 1st. The Court did not reach the issue whether the indictment was supported by legally sufficient evidence because the issue was not raised in […]
There is no right to counsel in a presentence interview with the probation department. People vs McNamara, 1472, KA 12-00204 Fourth Dept. 2-8-13
The Fourth Department dismissed one count of an indictment finding the indictment “multiplicitous” (charging a single offense in more than one count). The error was not preserved but the Court reviewed the issue “in the interest of justice.” People vs Quinn, 1131, KA 11-00278 Fourth Dept. 2-8-13
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