The Fourth Department, reversing Supreme Court, in a case sent back by the Court of Appeals for a determination of the appropriate discount rate on a jury verdict in a breach of contract action, held the plaintiff’s request for a jury trial on the issue should have been granted: … [I]t is undisputed that, […]
The Fourth Department, reversing Supreme Court, determined defendants in this wrongful death case were entitled to discovery of tax returns to determine whether the parents of the plaintiff-children were married. If the parents were married when mother died, the statute of limitations had passed: Individual tax returns are generally not discoverable unless the movant makes […]
The Fourth Department determined defendant was entitled to a new trial because the court did not properly instruct the jury on the definition of a “building” within the meaning of the burglary statute: … “[T]he court instructed the jurors that a dwelling is a building which is usually occupied by a person lodging therein […]
The Fourth Department dismissed an Article 78 petition seeking to prohibit retrial in a manslaughter case. The Fourth Department had dismissed the manslaughter count after determining the verdict was repugnant. The Court of Appeals agreed the verdict was repugnant but held that dismissal of the was not required: Petitioner was convicted of manslaughter in […]
The Fourth Department noted that periods of postrelease supervision cannot run consecutively. An illegal sentence must be corrected even if the issue is not raised on appeal: … [T]he court erred in directing that the periods of postrelease supervision run consecutively to the periods of postrelease supervision imposed in appeal No. 1 … . […]
The Fourth Department vacated defendant’s conviction and adjudicated defendant a youthful offender in the interest of justice (no abuse of discretion). The only factor weighing against youthful offender treatment was the seriousness of the crime, an armed felony: In determining whether to afford such treatment to a defendant, a court must consider “the gravity of the […]
The Fourth Department noted than an illegal sentence must be corrected even where there has been a waiver of appeal, and even where the issue was not raised below or on appeal. Here defendant was sentenced as a second felony offender, which is not proper when the underlying felony is defined in the Correction Law, […]
The Fourth Department, reversing defendant’s conviction for possession of a weapon, determined the evidence was legally insufficient to support the conviction. A co-defendant was seen (by the police) getting into a car with the weapon. Defendant also got into the car. The police followed. Before the police pulled the car over, when the car was […]
The Fourth Department, in a comprehensive decision dealing with several substantive issues not summarized here, affirmed defendant’s first degree murder (four counts) and burglary convictions, and reduced the arson second degree conviction to arson third degree. The victims were not alive when the fire was set. The definition of “person” (in the Arson second statute) […]
The Fourth Department, reversing defendant’s conviction for possession of a forged instrument (counterfeit check), determined two categories of hearsay evidence were improperly admitted without foundation: … [T]he court “erred in admitting in evidence a printout of electronic data that was displayed on a computer screen [after] defendant presented a check, the allegedly forged instrument, […]
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