The Fourth Department, remitting the matter, determined defendant had raised a factual issue requiring a suppression hearing: “When made before trial, suppression motions must be in writing, state the legal ground of the motion and contain sworn allegations of fact made by defendant or another person” … . A hearing may be denied “unless the […]
The Fourth Department, remitting the matter, determined the three-step Batson procedure was not followed when the defense objected to the People’s peremptory challenge to an African-American prospective juror: After defendant made a prima facie showing of discrimination in step one, the prosecutor offered a race-neutral explanation for the peremptory challenge … , namely, that the […]
The Fourth Department determined statements made after defendant unequivocally asserted his right to remain silent should have been suppressed, but the error was harmless. In addition the Fourth Department dismissed three counts of criminal possession of a weapon because all four counts related to the uninterrupted possession of a single weapon at different times. The […]
The Fourth Department, reversing Supreme Court, determined the contempt charges in this neglect/custody proceeding were jurisdictionally defective: We… conclude that the court erred in granting in part plaintiff’s contempt applications because they were jurisdictionally defective under Judiciary Law § 756. Section 756 provides that a contempt “application shall contain on its face a notice that […]
The Fourth Department. reversing Family Court, determined genetic marker testing to establish paternity should not have ordered without holding a hearing to determine if the testing is in the best interests of the child: We agree with the mother that the court erred in ordering genetic marker testing without first holding a hearing to determine […]
The Fourth Department reversed defendant’s convictions for criminal use of a firearm and criminal possession of weapon because the proof of constructive possession was legally insufficient: … [T]he evidence is legally insufficient to support her conviction of the counts of criminal use of a firearm in the first degree, criminal possession of a weapon in […]
The Fourth Department, reversing Family Court, determined that the failure to time file proof of service of respondent’s objections to the determination of the Support Magistrate did not warrant dismissal of the objections: Family Court Act § 439 (e) provides that a party filing objections to the determination of the Support Magistrate must serve those […]
The Fourth Department, remitted the mater for a determination whether defendant is eligible for youthful offender status: Because defendant was convicted of an armed felony offense … , he is ineligible to receive a youthful offender adjudication unless the court determines that one of two mitigating factors is present … . If the court, in […]
The Fourth Department, reversing Family Court, determined a hearing on whether mother was properly served with the neglect petition was necessary: … [P]etitioner failed in the first instance to establish that the documents were mailed to the mother’s ” ‘last known address’ ” inasmuch as “[t]he affidavit of service says that the [papers] were mailed […]
The Fourth Department, reversing (modifying) Supeme Court, determined plaintiff’s negligence cause of action seeking damages for exposure to contaminants on the land plaintiff purchased from defendant city should have been dismissed. A property owner’s liability for a dangerous condition ceases upon the transfer of the property: We … agree with defendant that the court erred […]
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