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Entries by CurlyHost

Showup Identification of the Hand-Cuffed Defendant Made in the Police Station Parking Lot 90 Minutes After the Crime Should Have Been Suppressed

The Fourth Department reversed defendant’s conviction and sent the matter back for a Wade hearing to determine whether the eyewitness had an independent basis for his in-court identification of the defendant. The show-up identification made by the eyewitness was deemed invalid and should have been suppressed: …[D]efendant contends that County Court erred in refusing to […]

January 3, 2014

Attorneys, Criminal Law

Twenty-Two-Year-Old Conviction Reversed Because of Ineffective Assistance of Counsel

The Fourth Department, over a two-justice dissent, reversed defendant’s 1992 conviction. The conviction had already been upheld on appeal. But, in 2012, a writ of coram nobis was brought arguing defendant did not receive a fair trial because of the ineffectiveness of his counsel. The writ was granted and, on appeal, the court determined defendant […]

January 3, 2014

Criminal Law

Banging On Door of Closed Restaurant While Wearing a Mask and Carrying a BB Gun Was Sufficient to Support Conviction for Attempted Robbery

Over a two-justice dissent, the Fourth Department affirmed defendant’s conviction for attempted robbery. Defendant, wearing a mask and armed with a BB gun, banged on the back door of a restaurant, which was closed. One of the restaurant employees called 911. On appeal the defendant argued that the proof was not sufficient to demonstrate an […]

January 3, 2014

Criminal Law

Determination Whether Defendant Is a Youthful Offender Is Mandatory for Every Eligible Youth

Over a dissent, the Fourth Department determined the sentencing court did not make a finding whether the defendant was a youthful offender, as it was required to do. The matter was sent back for the determination: “Upon conviction of an eligible youth, the court must order a [presentence] investigation of the defendant. After receipt of […]

January 3, 2014

Criminal Law, Evidence

Hearsay Statements Exonerating Defendant Properly Excluded as Not Meeting the Reliability Requirement for a “Statement Against Penal Interest”

Over a dissent, the Fourth Department determined the accomplice’s hearsay statements exonerating the defendant were properly excluded from evidence because they did not meet the “reliability” requirement for “statements against penal interest:” We … note that the Court of Appeals has recently reiterated that there are four components to the declaration against penal interest exception […]

January 3, 2014

Negligence

Question of Fact About Negligent Operation of a Ski Lift

The Fourth Department determined plaintiffs had raised a question of fact about whether the operators of a ski lift were negligent in failing to notice plaintiff’s skis were entangled as they approached the point where they were to get off the lift. Supreme Court had determined the cause of action was prohibited by the assumption […]

January 3, 2014

Municipal Law, Negligence

Plaintiff Did Not Raise Question of Fact About Whether Municipality Had Notice of Sidewalk Defect and Was Affirmatively Negligent

The Fourth Department, over a dissent, determined the plaintiff failed to raise a question of fact about whether the municipality created a dangerous condition by placing a piece of plywood over a hole in a sidewalk. There was evidence the municipality had received a work order for the area in question and the area was […]

January 3, 2014

Sepulcher

The Destruction of Decedent’s Body in a Trash Compactor Gave Rise to a Cause of Action for Loss of Sepulcher

The Fourth Department determined plaintiff, decedent’s sister, had stated a cause of action for loss of sepulcher. The decedent was crushed to death after falling into a trash compactor provided by the defendants. His body was never recovered. The court noted that adult children have “priority” over a sibling to bring an action for loss […]

January 3, 2014

Trusts and Estates

Decedent’s Divorce Did Not Invalidate Provisions of Her 1996 Will Which Made Her Former Father-In-Law the Alternate Executor and Alternate Beneficiary/Proof Was Insufficient to Demonstrate the 1996 Will Had Been Revoked by a Lost Will

In a full-fledged opinion by Justice Scudder, over a lengthy dissent by Justice Peradotto, the Fourth Department affirmed Surrogate’s Court’s determination that a 1996 will must be admitted to probate and any provisions of the will not affected by decedent’s divorce must be honored. The petitioner was the (divorced) decedent’s former father-in-law who was named […]

January 3, 2014

Municipal Law, Negligence

Property Owner Responsible for Defect in Sidewalk that Did Not Directly “Abut” Owner’s Property (Liability Based On New York City Ordinance)

In a full-fledged opinion by Justice Richter, the First Department determined a property owner was responsible for ensuring the safe condition of a sidewalk that did not directly abut the defendant’s property. The sidewalk was separated from the defendant’s property by a strip of land owned by the City. The Court determined the terms “abutting” […]

February 7, 2013

About CurlyHost

Entries by CurlyHost

Showup Identification of the Hand-Cuffed Defendant Made in the Police Station Parking Lot 90 Minutes After the Crime Should Have Been Suppressed

Twenty-Two-Year-Old Conviction Reversed Because of Ineffective Assistance of Counsel

Banging On Door of Closed Restaurant While Wearing a Mask and Carrying a BB Gun Was Sufficient to Support Conviction for Attempted Robbery

Determination Whether Defendant Is a Youthful Offender Is Mandatory for Every Eligible Youth

Hearsay Statements Exonerating Defendant Properly Excluded as Not Meeting the Reliability Requirement for a “Statement Against Penal Interest”

Question of Fact About Negligent Operation of a Ski Lift

Plaintiff Did Not Raise Question of Fact About Whether Municipality Had Notice of Sidewalk Defect and Was Affirmatively Negligent

The Destruction of Decedent’s Body in a Trash Compactor Gave Rise to a Cause of Action for Loss of Sepulcher

Decedent’s Divorce Did Not Invalidate Provisions of Her 1996 Will Which Made Her Former Father-In-Law the Alternate Executor and Alternate Beneficiary/Proof Was Insufficient to Demonstrate the 1996 Will Had Been Revoked by a Lost Will

Property Owner Responsible for Defect in Sidewalk that Did Not Directly “Abut” Owner’s Property (Liability Based On New York City Ordinance)

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