Although the error was deemed harmless, the Fourth Department noted that the prosecutor should not have been allowed to elicit testimony that defendant invoked his right to counsel: We agree with defendant that County Court erred in allowing the People to elicit testimony that defendant invoked his right to counsel …, but we conclude that […]
The Fourth Department reversed County Court’s determination that defendant, who was a presumptive level two sex offender, should be classified as a level three offender on the basis of a prior felony conviction of a sex crime. The County Court described the authority for the upward departure as an “automatic override.” The Fourth Department noted that an […]
The Fourth Department determined the victim’s statements to an emergency medical technician were admissible as excited utterances even though some time had elapsed between the victim’s treatment and her statements. The court determined that the stress of the situation had not diminished at the time the statements were made: It is well settled that “[t]he […]
The Fourth Department determined that a trailer that periodically was used as lodging, although not so used at the time of the fire, constituted a “building” within the meaning of the arson statute: “The ‘ordinary meaning’ of the term ‘building’ has been alternatively defined as ‘a constructed edifice designed to stand more or less permanently, […]
The Fourth Department reversed Family Court and found the three and a half year old child to be neglected. The child wandered off out of the house and was found by a neighbor one and a half blocks away . And the child had been living in highly unsanitary conditions: …[A] neglected child is defined as a […]
The Fourth Department, over a dissent, determined that summary judgment was properly granted to defendant truck driver who struck plaintiff’s vehicle as it entered the roadway from a stop. The truck driver had the right of way (there was no stop sign for the truck driver) and there was evidence the truck was travelling in excess […]
The Fourt Department determined summary judgment should have been granted to a corporate officer in a lead paint exposure case. The court explained when the “commission of a tort” doctrine applies to corporate officers: “The ‘commission of a tort’ doctrine permits personal liability to be imposed on a corporate officer for misfeasance or malfeasance, i.e., […]
The Fourth Department determined the petitioners did not have standing to bring a proceeding to raise a challenge under the State Environmental Quality Review Act (SEQRA) because the noise complaints stemming from a train running through town did not affect the petitioners differently from the public at large. The train runs through the town pursuant […]
In a full-fledged opinion by Justice Scudder, over a partial dissent, the Fourth Department addressed many issues (not all mentioned here) stemming from plaintiff’s fall from a bathroom window at a psuedo-fraternity house where the “resident defendants” rented rooms and were responsible for cleaning the bathrooms. The Fourth Department determined the resident defendants had a […]
The Third Department, over a dissent, determined that the intent in both the state and federal proceedings was to impose concurrent sentences and ruled that the Department of Corrections could not act to make the sentences consecutive: Issues involving sentencing by dual sovereigns are generally considered under the doctrine of primary jurisdiction and occasionally give […]
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