The Third Department determined the Town Law did not prohibit simultaneously running for Town Justice in two different towns: At issue is the portion of Town Law § 20 (4) providing that “[n]o person shall be eligible to hold more than one elective town office.” Petitioner interprets this to mean that no person may hold […]
The Court of Appeals, affirming the assault second conviction, determined defendant’s request for a jury charge on assault third as a lesser-included offense was properly denied because of the severity of the victim’s injuries: Both live and photographic evidence at trial, ten months after the attack, demonstrated that the victim’s face was disfigured with scars […]
The Second Department, reversing Supreme Court, determined that the court did not have authority to dismiss the medical malpractice action pursuant to CPLR 3216 for failure to prosecute in the absence of a 90-notice. The court further noted that, although dismissal for failure to comply with discovery demands was not warranted, the preclusion of further […]
The Second Department, over a concurrence and a dissent, determined the questioning of an unsworn witness (Mitchell) who refused to answer questions pursuant to the Fifth Amendment privilege deprived defendant of a fair trial. The issues pertaining to the witness’s refusal to take the oath and testify were nor preserved, but were considered in the […]
The Second Department determined appellate counsel’s brief in support of a motion to withdraw was deficient: An appellate court’s role in reviewing an attorney’s motion to be relieved pursuant to Anders v California (386 US 738) consists of two separate and distinct steps … . Step one requires the appellate court to perform “[an] evaluation of assigned […]
The Second Department determined defendant received effective assistance of counsel but the manslaughter first charge, as a lesser inclusory concurrent count of murder second, must be dismissed. Defendant argued defense counsel was ineffective for failing to raise the intoxication defense in this stabbing case: Assuming, without deciding, that the evidence at trial was sufficient to […]
The Second Department, reversing defendant criminal possession of a weapon conviction and dismissing that count, determined the arresting officers should have conducted the warrantless search of a backpack in which the seized weapon was found. The criteria for a search incident to arrest were not met: On April 30, 2015, at approximately 2:30 p.m., police officers […]
The Second Department, reversing defendant’s conviction, suppressing defendant’s statements and ordering a new trial, determined the initial questioning of the defendant, which was not preceded by the Miranda warnings, constituted interrogation. Therefore, those statements and the entire post-Miranda videotaped interrogation, should have been suppressed. The court further noted that statements made by an accomplice in […]
The Second Department, reversing defendant’s conviction and ordering new suppression motions and a new trial, determined defense counsel was ineffective for failing to move to suppress tangible evidence seized pursuant to a search warrant which was issued based upon unwarned statements made by the defendant, statements which had been suppressed by the trial court: Here, […]
The Second Department, reversing the NYS Department of Motor Vehicles Administrative Appeals Board, annulled the finding that petitioner was speeding and the suspension of his driver’s license. Petitioner was traveling below the speed limit when his car struck a pothole causing a mechanical failure which resulted in a fatal accident. The Administrative Law Judge had […]
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