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Court Was Not Authorized to Deny a 440 Motion Without a Hearing Where People Submitted No Opposition to the Defendant’s Adequate Papers

The Fourth Department determined the trial court was not authorized to deny a 440 motion to vacate defendant’s conviction without a hearing because the defendant submitted affidavits supporting the motion and the People submitted no opposition: County Court erred in denying without a hearing defendant’s motion seeking to vacate the judgment convicting him of, inter […]

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Court Should Have Granted a Hearing on Defendant’s Motion to Vacate His Conviction on Ineffective-Assistance Grounds

The Fourth Department determined defendant’s 440 motion to vacate his conviction should not have been denied without a hearing: Defendant’s submissions “tend[ ] to substantiate all the essential facts” necessary to support his claim of ineffective assistance of counsel (CPL 440.30 [4] [b]). Moreover, his allegations are not contradicted by a court record and are […]

Unlawful Imprisonment Charge Merged With Assault Charge

The Fourth Department determined the doctrine of judicial merger required dismissal of the unlawful imprisonment charge because it merged with the charged assault: “Under the doctrine of judicial merger, an unlawful imprisonment or kidnapping that is incidental to and inseparable from the commission of another crime merges with such other crime” … .  In determining […]

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Verdict Properly Set Aside Based Upon Trial Court’s Own Denial of Defendant’s Request for an Adjournment to Retain New Counsel/Criteria for Trial Court’s Setting Aside a Verdict Explained

The Fourth Department, after explaining the criteria for setting aside a verdict, ruled the trial court had properly set aside the verdict in this case due to the trial court’s own erroneous denial of defendant’s request for an adjournment to seek new counsel: “Pursuant to CPL 330.30 (1), following the issuance of a verdict and […]

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Eugenics Argument Should Be Rejected in a Lead-Paint Poisoning Case/Notice Criteria Explained

In a lead-paint poisoning case, the Fourth Department determined that the trial court’s denial of plaintiff’s motion to preclude the defendant from “claiming socioeconomic, genetic, eugenic or euthenics alternative and/or negating cause[s]” was not appealable. But Justice Fahey made it clear in a concurring opinion that the eugenics argument should be rejected.  In addition the […]

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Criteria for Review of a Zoning Amendment Explained

In upholding the propriety of the amendment, the Fourth Department explained the criteria for review of a zoning amendment: It is well settled that a zoning amendment enjoys a “strong presumption of validity” …, and the decision of defendant Common Council of the City to amend the zoning ordinance should not be disturbed where, as […]

Redaction of Information Which Could Possibly Endanger Witnesses in a Homicide Investigation Is Required

Over a dissent, the First Department determined that information which could endanger confidential witnesses in a homicide investigation should be redacted from documents released pursuant to a FOIL request: We agree with the dissent’s observation that the public safety exemption of Public Officers Law § 87(2)(f) does not warrant a blanket exception for DD5s …that […]

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Accident Occurred Within 15-Day Grace Period Allowed for Repair of Road Defects/City Could Not Be Held Liable

The First Department reversed Supreme Court and held that the 15-day grace period allowed for the repair of an identified roadway defect precluded plaintiff’s lawsuit: Eight days before plaintiff’s accident, a City highway inspector employed by the Department of Transportation prepared a Highway Inspection and Quality Assurance Report identifying a two-inch-deep defect in the street […]

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