The Fourth Department determined the waiver of indictment was jurisdictionally defective because it did not include the approximate time of the offense: A written waiver of indictment must be executed in strict compliance with the requirements of CPL 195.20 … , which in relevant part provides that such a waiver shall contain the “approximate time […]
The Fourth Department noted that a waiver of appeal, to be enforceable, must be supported by a sentence promise as consideration: Defendant correctly argues in his main brief that his waiver of the right to appeal is invalid because he pleaded guilty to the sole count of the indictment ” without receiving a sentencing commitment […]
The Fourth Department vacated the plea and waiver of indictment because the approximate of the offense was not included in the waiver: … [D]efendant contends that her waiver of indictment is jurisdictionally defective because it did not contain the “approximate time” of the offense (CPL 195.20). We agree. A jurisdictionally valid waiver of indictment must contain, […]
The Fourth Department vacated defendant’s sentence because the sentencing court did not mention restitution as part of the sentence in defendant’s presence. The error survives a lack of preservation and a waiver of appeal. The Fourth Department noted that any discrepancy between the restitution amount in the plea agreement and the amount in the confession […]
The Fourth Department, reversing Family Court, determined father was entitled to a hearing on whether he willfully violated a child support order. The Fourth Department noted that. although father had completed the sentence of incarceration, the appeal was not moot because of the consequences which could flow from a finding of civil contempt: We agree with […]
The Fourth Department, reversing Supreme Court in this false arrest and malicious prosecution action, determined plaintiff’s motion for summary judgment should not have been granted because the video evidence raised questions of fact. The court noted that the action against the franchisor, Denny’s, where the confrontation between plaintiff and the restaurant security guards took place, […]
The Fourth Department, reversing Supreme Court and reinstating the negligence action, determined Supreme Court did not have jurisdiction over the matter because the Workers’ Compensation Board had not yet ruled whether plaintiff was injured when acting in the scope of his employment. The parties did not raise this issue: Although not raised by the parties, […]
The Fourth Department, reversing Family Court, determined that mother’s child’s statement about age-inappropriate sexual conduct involving mother’s child and a non-family child was not corroborated and therefore the neglect allegation against mother was not proven: Although the testimony of the two caseworkers established that the disclosure reflected age-inappropriate knowledge of sexual matters, petitioner failed to submit “[a]ny other evidence […]
The Fourth Department, reversing and modifying Supreme Court in three related appeals, clarified the respective burdens to be met at the summary judgment stage in a medical malpractice action. Applying those burdens, the Fourth Department found that summary judgment should have been awarded to the defendants in two of the three appeals. The court noted […]
The Fourth Department determined the executor of the estate (respondent) properly waived the attorney-client privilege on decedent’s (Anthony’s) behalf and demonstrated. through the decedent’s attorney’s testimony, that decedent’s shares in the corporation (NYSFC) had been transferred to the executor well before decedent’s death. Therefore the shares were properly excluded from the estate. Despite the absence […]
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