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THE CUSTODIAL INTERFERENCE OFFENSES DID NOT TAKE PLACE IN ONTARIO COUNTY AND DID NOT HAVE A PARTICULAR EFFECT ON ONTARIO COUNTY; THEREFORE THE COURT DID NOT HAVE JURISDICTION OVER THEM (FOURTH DEPT).

The Fourth Department determined the custodial interference offenses did not have a “particular effect” in Ontario County, therefore the court did not have jurisdiction over them: … [I]t is undisputed that all elements of the crime of custodial interference in the first degree were committed outside of Ontario County, the People contend that Ontario County […]

SUPREME COURT SHOULD HAVE CONDUCTED A HEARING ON THE MOTION TO SET ASIDE THE VERDICT ALLEGING RACIAL BIAS AMONG JURORS (FOURTH DEPT).

The Fourth Department, remitting the matter, determined defendant’s motion to set aside the verdict based upon juror misconduct should not have been denied without a hearing: … [S]etting aside the verdict “is warranted where a juror had an undisclosed preexisting prejudice that would have resulted in his or her disqualification if it had been revealed […]

PLAINTIFF INJURED HIS BACK LIFTING A HEAVY METAL STRUCTURE A FEW INCHES TO ALLOW ROOFING MATERIAL TO BE PUT DOWN UNDERNEATH IT; THE INJURY WAS NOT THE RESULT OF AN ELEVATION-RELATED HAZARD COVERED BY LABOR LAW 240 (1) (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendants’ motion for summary judgment on plaintiff’s Labor Law 240 (1) cause of action should have been granted. Plaintiff injured his back lifting a metal structure a few inches so roofing material could be applied underneath it. The injury was not related to the failure to provide a […]

THE DWI COUNTS WERE INCLUSORY CONCURRENT COUNTS OF VEHICULAR MANSLAUGHTER WHICH MUST BE DISMISSED AS A MATTER OF LAW (FOURTH DEPT).

The Fourth Department noted that DWI is an inclusory concurrent count of vehicular manslaughter: … [T]he DWI counts of which defendant was convicted are inclusory concurrent counts of vehicular manslaughter in the second degree , reconsideration . Thus, those DWI counts must be dismissed as a matter of law … . People v Conklin, 2021 NY […]

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THE ADMINISTRATIVE RECORD SUPPORTED THE GRANT OF THE ARIA VARIANCE BY THE ZONING BOARD OF APPEALS; SUPREME COURT SHOULD NOT HAVE SUBSTITUTED ITS JUDGMENT FOR THE BOARD’S (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the zoning board of appeals (ZBA) properly granted an area variance and Supreme Court should not have substituted its judgment for the board’s: The administrative record and the ZBA’s formal return in the CPLR article 78 proceeding establish that the ZBA considered the five statutory factors, including whether […]

MOTHER TIMELY REVOKED HER EXTRA-JUDICIAL SURRENDER OF HER CHILD FOR ADOPTION; FAMILY COURT SHOULD NOT HAE DENIED MOTHER’S MOTION TO DEEM THE SURRENDER A NULLITY AND SHOULD NOT HAVE CONDUCTED A BEST INTERESTS HEARING (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined mother properly revoked her extra-judicial surrender of the child for adoption and Family Court should not have denied mother’s motion to deem the surrender a nullity and should not have conducted a best interests hearing: … [T]he plain language of Social Services Law § 383-c (6) (a) mandates […]

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THE $1000 FINE FOR THE DWI COUNT WAS HARSH AND EXCESSIVE; THE FAILURE TO IMPOSE A FINE FOR AGGRAVATED UNLICENSED OPERATION WAS ILLEGAL; REFUSING TO SUBMIT TO A BREATH TEST IS NOT A COGNIZABLE OFFENSE (FOURTH DEPT).

The Fourth Department determined: (1) the $1000 fine imposed for the driving while intoxicated count (in addition to a period of incarceration) was harsh and excessive; (2) the sentence for aggravated unlicensed operation was illegal; and (3) refusing to submit to a breath test is not a crime: … [T]he sentence imposed on count two […]

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DEFENDANT’S WAIVER OF APPEAL WAS INVALID; UNWARNED STATEMENTS MADE DURING CUSTODIAL INTERROGATION SHOULD HAVE BEEN SUPPRESSED; GUILTY PLEA VACATED (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty plea, determined defendant’s waiver of appeal was invalid and unwarned statements made by the defendant under custodial interrogation should have been suppressed. Defendant was interrogated about two missing college students. As the questioning proceeded it became apparent defendant was involved in the matter in some way, and eventually she […]

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THE LEVEL-THREE RISK ASSESSMENT WAS NOT MANDATORY AND THE EVIDENCE IN SUPPORT OF A DOWNWARD DEPARTURE SHOULD HAVE BEEN CONSIDERED; ON REMAND WRITTEN FINDINGS OF FACT AND CONCLUSIONS OF LAW ARE REQUIRED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the SORA court should not have considered the level three risk assessment mandatory and should have considered the evidence submitted in support of a downward department. On remand, the SORA court was directed to make findings of fact and conclusions of law in writing: Where a “defendant’s prior […]

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THE SUPPRESSION COURT PROPERLY FOUND THE POLICE OFFICERS’ TESTIMONY ABOUT THE REASON FOR THE TRAFFIC STOP CREDIBLE; TWO DISSENTERS DISAGREED (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the suppression court properly deemed the police officers’ testimony about the reasons for the traffic stop credible. After a car chase and a foot chase, a weapon was seized from the vehicle and defendant was charged with criminal possession of a weapon second. The dissenters argued that […]

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