The Fourth Department, over a two-justice dissent, determined the evidence supported the first degree murder charge, based upon defendant’s hiring the killer. The dissent argued the proof of the contract-killing was insufficient. The second degree murder count should have been dismissed: We and our dissenting colleagues agree on many points. All of us agree that […]
The Fourth Department reduced defendant’s risk level from two to one, finding there was no proof the children depicted in pornography were less than ten years old: Defendant was convicted of possessing a sexual performance by a child (Penal Law § 263.16), which requires proof, inter alia, that defendant possessed a play, motion picture, or […]
The Fourth Department, reversing (modifying) Supreme Court, over a dissent, determined that plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action. Plaintiff had positioned the scaffold on a drain grate and the scaffold tipped when a wheel went through a hole in the grate: “[T]he relevant and proper inquiry […]
The Fourth Department noted that the term “serious injury” not “injury” should be used on a verdict sheet in a case involving Insurance Law 5102: … [W]e … note that the first question on the verdict sheet — i.e., “[w]as the accident . . . a substantial factor in causing an injury to [plaintiff]?” — […]
The Fourth Department, reversing Supreme Court’s grant of summary judgment to defendant, over an extensive dissent, determined the notice of appeal did not restrict the appeal to the denial of plaintiff;s cross motion for summary judgment, but rather encompassed the appeal of the grant of summary judgment dismissing the complaint: … [W]e reject the assertion […]
The Fourth Department reduced defendant’s sentence after trial, in part because it was so much greater than the sentence offered in exchange for a plea: … [T]he aggregate sentence of 60 years, which is statutorily reduced to 50 years (see Penal Law § 70.30 [1] [c], [e] [vi]), is unduly harsh and severe. Defendant has no prior […]
The Fourth Department determined Town Court properly ordered the euthanasia of respondent’s dog, Wally, after the dog broke free, ran into petitioner’s yard, and repeatedly bit a three-year-old girl. The dissenter argued the proof did not demonstrate the child suffered serious injury within the meaning of the Agriculture and Markets Law: Respondent does not dispute […]
The Fourth Department, over a dissent, determined the sole proximate cause of plaintiff’s burn injuries was a guest’s (Gray’s) pouring kerosene onto an active fire in a fire pit at defendants’ home. All parties were adults. The mere presence of kerosene at the home did not constitute a dangerous condition. The dissenter argued defendant-parent did […]
The Fourth Department, reversing (modifying) Supreme Court, over a two-justice dissent, determined defendants demonstrated they were entitled to summary judgment under the storm in progress rule. The dissenters argued there was a question of fact whether the icy condition was there before the storm: … [W]e conclude that defendants established as a matter of law […]
The Fourth Department, reversing County Court, determined a hearing was required on defendant’s motion to vacate his conviction on ineffective assistance grounds. The motion alleged that defense counsel did not adequately investigate alibi witnesses. The Fourth Department also held that County Court properly found a witness’s recantation of trial testimony unbelievable: In recognition of the […]
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