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
A valid waiver of the right to appeal did not preclude defendant from challenging the severity of his sentence where the sentencing court did not inform the defendant of the maximum term of incarceration and there was no specific sentence promise at the time of the waiver. People vs Scott, 107, KA 11-01655 Fourth Dept. […]
The Fourth Department determined a police officer had the right to frisk the passengers in a lawfully stopped car to the extent necessary to protect his safety because he was acting on reasonable suspicion that criminal activity was afoot and on an articulable basis to fear for his own safety. Before the defendant got into […]
In an appeal by the People, the Fourth Department determined the suppression motion should not have been granted for the reasons relied on by the suppression court. The Fourth Department found that the officers who approached two men and asked the non-threatening question “What’s up guys” had “an objective credible reason not necessarily indicative of […]
A police officer approached the defendant’s car which was illegally parked. The officer asked the defendant “What’s going on” and the defendant answered that he was seeking a prostitute. The officer asked if there was anything in the car he “should be aware of” and then asked for and received permission to search the car. […]
No judgment can be entered based upon inconsistent interrogatory answers (by the jury) and a general verdict. The only remedy is for the trial judge to instruct the jury to keep deliberating or order a new trial (CPLR 4111 (c)). Applebee vs County of Cayuga, 1388, CA 11-02090 Fourth Dept. 2-8-13
In reversing an “amended judgment” in which the judge purported to correct an error in the calculation of child support and maintenance arrears, the Fourth Department noted: “a court has no power to reduce or increase the amount of a judgment when there is no clerical error…”. Meenan vs Meenan, 1493, CA12-01885 Fourth Dept. 2-8-13 […]
In a full-fledged opinion by Justice Peradotto, the Fourth Department determined that a teacher, for seniority purposes, deserved credit for the entire period during which she taught full-time, no matter how the type of employment was labeled (per diem, substitute, probationary, etc.). Although the teacher technically was asked to “resign” until she passed a particular […]
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