The Second Department vacated defendant’s conviction of a lesser included count: … [T]he defendant’s conviction of predatory sexual assault against a child under Penal Law § 130.96 requires dismissal of the lesser included count of course of sexual conduct against a child in the first degree under Penal Law § 130.75(1)(a) … . People v Mendez-Huales, […]
The Second Department determined the inclusory concurrent count must be dismissed despite the failure to request that it be presented to the jury in the alternative: … [U]nder the facts of this case, the defendant could not have committed the crime of criminal contempt in the first degree as charged in count 10 of the […]
The Second Department, reversing (modifying) Supreme Court, determined certain discovery demands by plaintiff should have been granted. Plaintiff’s decedent was a resident at defendant’s residential care facility and plaintiff brought an action against the facility alleging negligent care and violations of Public Health law 2801-d: Supreme Court should have granted those branches of the plaintiff’s […]
The Second Department determined the petition for a license pursuant to Real Property Actions and Proceedings Law (RPAPL) 881 to temporarily enter a condominium to make repairs was properly granted: RPAPL 881 allows the owner of “real property” to petition for a license to enter the “premises” of an adjoining owner when such entry is […]
The Second Department, reversing (modifying) Supreme Court, in a memorandum which did not discuss the facts, determined the People’s request to withhold discovery until 15 days before a hearing or trial, for the witnesses’ safety, should have been granted: Pursuant to CPL 245.70(6), a party who has unsuccessfully sought, or opposed the granting of, a […]
he Third Department determined Family Court properly found that mother had not moved beyond the 40-mile limit imposed by the settlement agreement. The Family Court judge took judicial notice of the distance involved in the move which was determined to be 39 miles. The dissent argued Family Court erred in not specifying the basis for […]
The Third Department determined defendant’s murder conviction must be reversed in the interest of justice because the evidence of prior bad acts exceeded that allowed by the court’s Molineux ruling: Defendant also challenges certain testimony by the victim’s niece as being beyond the scope of County Court’s Molineux ruling. As part of its Molineux application, the People requested that […]
The Fourth Department, reversing the “luring a child” convictions, over a two-justice dissent, determined the convictions were against the weight of the evidence. The court noted that if the evidence of an element of an offense is legally insufficient the conviction of that offense is against the weight of the evidence: The evidence at trial established […]
The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined the sex offender civil management verdict, which found defendant did not suffer from a mental abnormality and was therefore entitled to release, should not have been set aside. The state argued the jury foreperson’s telling the jury that, according to the foreperson’s father, “if […]
The Fourth Department determined it was harmless error to allow the prosecutor in this murder case to show part of a movie from which the defendant had posted dialogue. The dissent argued the error was not harmless: … [T]he court abused its discretion when it permitted the prosecutor to play for the jury a scene […]
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