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FAILURE TO TAKE INTO ACCOUNT CONSUMER BRAND PREFERENCE IN EVALUATING A CAR DEALER’S PERFORMANCE VIOLATES THE DEALER ACT; UNILATERAL CHANGE TO THE GEOGRAPHIC AREA USED TO EVALUATE A CAR DEALER’S PERFORMANCE DOES NOT VIOLATE THE DEALER ACT.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissenting opinion, determined General Motors’ [GM’s] failure to take into account consumer-preference in determining an auto-dealer’s [franchisee’s] performance violated the Dealer Act. The court further determined that GM’s changes to the geographic area in which plaintiff-dealer’s sales performance is measured did not violate the act:

… [O]nce GM determined that statewide raw data must be adjusted to account for customer preference as a measure of dealer sales performance, GM’s exclusion of local brand popularity or import bias rendered the standard unreasonable and unfair because these preference factors constitute market challenges that impact a dealer’s sales performance differently across the state. It is unlawful under section 463 (2) (gg) to measure a dealer’s sales performance by a standard that fails to consider the desirability of the Chevrolet brand itself as a measure of a dealer’s effort and sales ability. * * *

… [A] revision of the [geographic area] is not perforce violative of section 463 (2) (ff). Rather, such change must be assessed on a case-by-case basis, upon consideration of the impact of the revision on a dealer’s position. Beck Chevrolet Co., Inc. v General Motors LLC, 2016 NY Slip Op 03412, CtApp 5-3-16

 

FRANCHISED MOTOR VEHICLE DEALER ACT (FAILURE TO TAKE INTO ACCOUNT CONSUMER BRAND PREFERENCE IN EVALUATING A CAR DEALER’S PERFORMANCE VIOLATES THE DEALER ACT; UNILATERAL CHANGE TO THE GEOGRAPHIC AREA USED TO EVALUATE A CAR DEALER’S PERFORMANCE DOES NOT VIOLATE THE DEALER ACT)/DEALER ACT (FAILURE TO TAKE INTO ACCOUNT CONSUMER BRAND PREFERENCE IN EVALUATING A CAR DEALER’S PERFORMANCE VIOLATES THE DEALER ACT; UNILATERAL CHANGE TO THE GEOGRAPHIC AREA USED TO EVALUATE A CAR DEALER’S PERFORMANCE DOES NOT VIOLATE THE DEALER ACT)/CAR SALES (DEALER ACT, FAILURE TO TAKE INTO ACCOUNT CONSUMER BRAND PREFERENCE IN EVALUATING A CAR DEALER’S PERFORMANCE VIOLATES THE DEALER ACT; UNILATERAL CHANGE TO THE GEOGRAPHIC AREA USED TO EVALUATE A CAR DEALER’S PERFORMANCE DOES NOT VIOLATE THE DEALER ACT)/AUTO SALES (DEALER ACT, FAILURE TO TAKE INTO ACCOUNT CONSUMER BRAND PREFERENCE IN EVALUATING A CAR DEALER’S PERFORMANCE VIOLATES THE DEALER ACT; UNILATERAL CHANGE TO THE GEOGRAPHIC AREA USED TO EVALUATE A CAR DEALER’S PERFORMANCE DOES NOT VIOLATE THE DEALER ACT)/VEHICLE AND TRAFFIC LAW (DEALER ACT, FAILURE TO TAKE INTO ACCOUNT CONSUMER BRAND PREFERENCE IN EVALUATING A CAR DEALER’S PERFORMANCE VIOLATES THE DEALER ACT; UNILATERAL CHANGE TO THE GEOGRAPHIC AREA USED TO EVALUATE A CAR DEALER’S PERFORMANCE DOES NOT VIOLATE THE DEALER ACT)

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LEVEL THREE ASSESSMENT FOR INFLICTION OF SERIOUS INJURY PROPER EVEN THOUGH THERE WAS NO SEX OFFENSE COMMITTED DURING THE UNLAWFUL IMPRISONMENT OF A CHILD.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over an extensive dissent, determined County Court did not abuse its discretion when it applied a statutory override for infliction of serious injury, adjudicating defendant a level three sex offender, despite the fact defendant was not charged with a sex offense. By statute, a defendant convicted of the unlawful imprisonment of a child is deemed a sex offender, even when no sex offense was committed. Here the child was assaulted (tortured) and seriously injured over the course of a five-day ordeal, but no sex offense was involved. The points assessed under the Sex Offender Registration Act (SORA) criteria rose only to a level one. Because of the extreme violence, County Court applied the statutory override:

… [T]he application of the override for “infliction of serious physical injury,” “automatically result[s] in a presumptive risk assessment of level [three]” (Guidelines at 3). Therefore, properly framed, defendant’s argument is that the SORA court abused its discretion in declining to engage in a downward departure from the presumptive risk level three. We disagree.

Defendant’s sole argument to the SORA court was that the absence of a sexual component to his crime, in and of itself, warranted a level one adjudication. That factor, the existence of which was not in dispute, was considered [when] the Board assessed him 0 points for risk factor 2 — Sexual Contact with Victim. Defendant made no other argument of a mitigating factor to the SORA court in support of a downward departure. In the exercise of its discretion, the SORA court declined to depart from the presumptive risk level three. People v Howard, 2016 NY Slip Op 03415, CtApp 5-3-16

CRIMINAL LAW (SORA, LEVEL THREE ASSESSMENT FOR INFLICTION OF SERIOUS INJURY PROPER EVEN THOUGH THERE WAS NO SEX OFFENSE COMMITTED DURING THE UNLAWFUL IMPRISONMENT OF A CHILD)/SEX OFFENDER REGISTRATION ACT (LEVEL THREE ASSESSMENT FOR INFLICTION OF SERIOUS INJURY PROPER EVEN THOUGH THERE WAS NO SEX OFFENSE COMMITTED DURING THE UNLAWFUL IMPRISONMENT OF A CHILD)/SORA (LEVEL THREE ASSESSMENT FOR INFLICTION OF SERIOUS INJURY PROPER EVEN THOUGH THERE WAS NO SEX OFFENSE COMMITTED DURING THE UNLAWFUL IMPRISONMENT OF A CHILD)

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PROBABLE CAUSE TO ARREST SUPPORTED BY THE RECORD.

The Court of Appeals noted that its review of whether there was probable cause for arrest, a mixed question of fact and law, is limited to whether there is support for a probable-cause finding in the record. Here the police were conducting surveillance on a target drug dealer. The police observed defendant take a bag from the target’s car, which was deemed sufficient to provide probable cause to arrest:

After a Darden hearing … , Supreme Court found that the confidential information had given the police “cause to believe” that the surveillance target was engaged in “drug activity.” Insofar as a Darden hearing is held to ensure “that the confidential informant both exists and gave the police information sufficient to establish probable cause” … , it may be inferred from the Darden hearing court’s ruling, which was adopted by the suppression court for the purpose of determining probable cause, that the confidential information was not stale by the time of defendant’s arrest.

Furthermore, the officer’s justified belief that the surveillance target was trafficking in narcotics, together with the manner in which the bag was removed from the car, support the lower courts’ conclusion that the police had probable cause to arrest defendant for criminal possession of a controlled substance. Record support for probable cause may be found on the basis of “indicia of a drug transaction” known to “an experienced officer . . . trained in the investigation and detection of narcotics,” which include “handl[ing] [an] unidentified object in a manner typical of a drug sale” … . People v Joseph, 2016 NY Slip Op 03416, CtApp 5-3-16

CRIMINAL LAW (PROBABLE CAUSE TO ARREST SUPPORTED BY THE RECORD, REVIEW BY COURT OF APPEALS)/APPEALS (COURT OF APPEALS REVIEW, CRIMINAL LAW, PROBABLE CAUSE TO ARREST SUPPORTED BY THE RECORD)

PEOPLE NEED NOT PROVE DEFENDANT KNEW THE KNIFE DEFENDANT POSSESSED MET THE STATUTORY DEFINITION OF A GRAVITY KNIFE.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the People do not need to prove a defendant charged with possession of a gravity knife was aware the knife opened and locked by flicking the wrist downward. Here defendant claimed he always opened the knife with two hands, used it only to cut sheetrock and tile and did not know it was a gravity knife:

We … conclude that Penal Law § 265.01 (1) does not require the People to prove that defendants knew that the knife in their possession met the statutory definition of a gravity knife. The plain language of that subdivision demonstrates that the Legislature intended to impose strict liability to the extent that defendants need only be aware of their physical possession of the knife (see Penal Law §§ 15.00 [2]; 15.10). While knowing possession of the knife is required (see Penal Law § 15.15 [2]), we conclude it is not necessary that defendants know that the knife meets the technical definition of a gravity knife under Penal Law § 265.00 (5). People v Parrilla, 2016 NY Slip Op 03417, CtApp 5-3-16

CRIMINAL LAW (GRAVITY KNIFE, PEOPLE NEED NOT PROVE DEFENDANT KNEW THE KNIFE DEFENDANT POSSESSED MET THE STATUTORY DEFINITION OF A GRAVITY KNIFE)/GRAVITY KNIFE (CRIMINAL LAW, PEOPLE NEED NOT PROVE DEFENDANT KNEW THE KNIFE DEFENDANT POSSESSED MET THE STATUTORY DEFINITION OF A GRAVITY KNIFE)

DENIAL OF MOTION TO WITHDRAW PLEA WITHOUT A HEARING WAS NOT AN ABUSE OF DISCRETION.

The Court of Appeals determined that defendant's motion to withdraw his plea was properly denied without a hearing:

“When a defendant moves to withdraw a guilty plea, the nature and extent of the fact-finding inquiry rest[s] largely in the discretion of the Judge to whom the motion is made and a hearing will be granted only in rare instances” … . .”[O]ften, a limited interrogation by the court will suffice” … . Here, the court gave the parties an opportunity to argue in furtherance of the motion to withdraw the plea, and because both parties declined, the motion was appropriately decided on the written submissions. Furthermore, while defense counsel claimed that defendant had been pressured by his family to take the plea, this Court has “never recognized 'coercion' by family members as a reason for withdrawing a guilty plea”… , and the record here does not demonstrate that the court abused its discretion in denying the motion on that ground. Additionally, given defendant's silence in any sworn statement regarding his alleged use of drugs and alcohol and the court's ability to observe defendant during the colloquy …, it was not an abuse of discretion for the court to have denied the motion to withdraw the plea without holding a hearing. People v Manor, 2016 NY Slip Op 03414, CtApp 5-3-16

CRIMINAL LAW (DENIAL OF MOTION TO WITHDRAW PLEA WITHOUT A HEARING WAS NOT AN ABUSE OF DISCRETION)/WITHDRAW PLEA, MOTION TO (DENIAL OF MOTION TO WITHDRAW PLEA WITHOUT A HEARING WAS NOT AN ABUSE OF DISCRETION)

DNA TEST RESULTS DEEMED TESTIMONIAL HEARSAY TRIGGERING DEFENDANT’S RIGHT TO CONFRONT THE ANALYST(S) WITH FIRST-HAND KNOWLEDGE OF CRUCIAL STAGES OF THE ANALYSIS.

The Court of Appeals, in an extensive opinion by Judge DiFiore, over an equally extensive three-judge dissenting opinion, determined the results of DNA testing, which matched defendant's DNA to that found on a weapon, should not have been admitted based solely on the testimony of a laboratory analyst who did not witness crucial aspects of the testing. The evidence was deemed “testimonial” requiring the People to produce a witness with first-hand knowledge who can be cross-examined about essential aspects of the analysis:

Here, there was a criminal action pending against defendant, and the gun, found in the basement of a multifamily dwelling where defendant lived, was evidence seized by police for that prosecution. Swabs from the gun were then tested by an accredited public DNA crime laboratory with the primary (truly, the sole) purpose of proving a particular fact in a criminal proceeding — that defendant possessed the gun and committed the crime for which he was charged. The testing analysts purposefully recorded the DNA profile test results, thereby providing the very basis for the scientific conclusions rendered thereon. Under these circumstances, the laboratory reports as to the DNA profile generated from the evidence submitted to the laboratory by the police in a pending criminal case were testimonial. The DNA profiles were generated in aid of a police investigation of a particular defendant charged by an accusatory instrument and created for the purpose of substantively proving the guilt of a defendant in his pending criminal action. * * *

… [W]e conclude that it is the generated numerical identifiers and the calling of the alleles at the final stage of the DNA typing that effectively accuses defendant of his role in the crime charged. … [A] laboratory that uses a … multiple-analyst model, may adapt their operation so that a single analyst is qualified to testify as to the DNA profile testing. For example, an analyst who generated the DNA profile from one sample may also observe the final stage of testing or retesting involved in the generation of the other profile. Nor do we suggest that, when the testing analysts are unavailable, a fully qualified … expert … cannot testify after analyzing the necessary data, including an independent analysis of the computer imaging from the software used for calling the alleles and recording their separate and distinct analysis. Thus, the claim of a need for a horde of analysts is overstated and a single analyst, particularly the one who performed, witnessed or supervised the generation of the critical numerical DNA profile, would satisfy the dictates of Crawford [541 US 36] and Bullcoming [564 US 647]. People v John, 2016 NY Slip Op 03208. CtApp 4-28-16


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LANDLORD OWED NO STATUTORY DUTY TO ABATE LEAD IN AN APARTMENT WHERE THE CHILD SPENT 50 HOURS PER WEEK IN THE CARE OF HER GRANDMOTHER, LAW REQUIRING LEAD PAINT ABATEMENT APPLIES ONLY TO APARTMENTS WHERE A CHILD RESIDES.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a dissenting opinion by Judge Fahey, determined a New York City Local Law, which imposed a duty on the landlord to abate lead paint in an apartment where a child under the age of six “resides,” did not apply to an apartment where a child was cared for 50 hours per week. Plaintiff’s child was cared for during the day by grandmother in grandmother’s apartment. The child developed an elevated lead level. In order to sue the landlord, the landlord must have owed a statutory duty to the child to abate the lead in grandmother’s apartment. The majority held that the term “reside” in the Local Law did not encompass the child’s presence in the apartment 50 hours a week. Therefore the landlord owed no duty to the child:

Dictionaries from the relevant time period define “reside” as “to dwell permanently or continuously: occupy a place as one’s legal domicile” (Merriam Webster’s New Collegiate Dictionary 1003 [9th ed 1986]) and “to have a settled abode for a time; have one’s residence or domicile” (Webster’s Third New International Dictionary 1931 [1981]). According to Webster’s Third, “reside” is the “preferred term for expressing the idea that a person keeps or returns to a particular dwelling place as his fixed, settled, or legal abode” … . Black’s Law Dictionary notes that “residence” “is made up of fact and intention, the fact of abode and the intention of remaining, and is a combination of acts and intention. Residence implies something more than mere physical presence and something less than domicile” (Black’s Law Dictionary 1176 [5th ed 1979]). * * *

Nothing in the legislative history of Local Law 1 suggests that the City Council meant anything other than this understanding of the term “reside.” We presume the City was familiar with the common meaning and usage of the words it used as well as existing decisional law …, which, in this case, understood residence as something more than physical presence but something less than domicile — living in a particular place with the intent to retain it as a residence … . Had the City intended to expand the meaning of the word “reside” to include children who do not actually live in an apartment but spend significant amounts of time there, it could have used words to that effect … . Yaniveth R. v LTD Realty Co., 2016 NY Slip Op 02550, CtApp 4-5-16

NEGLIGENCE (LEAD PAINT, LANDLORD OWED NO STATUTORY DUTY TO ABATE LEAD IN AN APARTMENT WHERE THE CHILD SPENT 50 HOURS PER WEEK IN THE CARE OF HER GRANDMOTHER, LAW REQUIRING LEAD PAINT ABATEMENT APPLIES ONLY TO APARTMENTS WHERE A CHILD RESIDES)/LEAD PAINT (LANDLORD OWED NO STATUTORY DUTY TO ABATE LEAD IN AN APARTMENT WHERE THE CHILD SPENT 50 HOURS PER WEEK IN THE CARE OF HER GRANDMOTHER, LAW REQUIRING LEAD PAINT ABATEMENT APPLIES ONLY TO APARTMENTS WHERE A CHILD RESIDES)/LANDLORD-TENANT (LEAD PAINT, LANDLORD OWED NO STATUTORY DUTY TO ABATE LEAD IN AN APARTMENT WHERE THE CHILD SPENT 50 HOURS PER WEEK IN THE CARE OF HER GRANDMOTHER, LAW REQUIRING LEAD PAINT ABATEMENT APPLIES ONLY TO APARTMENTS WHERE A CHILD RESIDES)

TEACHER WITH TENURE WHO RESIGNED AND WAS THEN REHIRED WAS NOT REHIRED WITH TENURE; THE TEACHER FAILED TO COMPLY WITH THE REGULATION REQUIRING A WRITTEN WITHDRAWAL OF THE RESIGNATION SUBJECT TO THE APPROVAL OF THE CHANCELLOR.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined the petitioner, a teacher with tenure who resigned and was then rehired, was not rehired with tenure. The NYC Board of Education Chancellor’s Regulations required, in order to be rehired with tenure, the teacher must submit a written request to withdraw the resignation which is subject to a medical examination and the approval of the Chancellor. Because the petitioner did not submit a written request to withdraw his resignation his rehiring was without tenure. Matter of Springer v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2016 NY Slip Op 02553, CtApp 4-5-16

EDUCATION-SCHOOL LAW (TEACHER WITH TENURE WHO RESIGNED AND WAS THEN REHIRED WAS NOT REHIRED WITH TENURE; THE TEACHER FAILED TO COMPLY WITH THE REGULATION REQUIRING A WRITTEN WITHDRAWAL OF THE RESIGNATION SUBJECT TO THE APPROVAL OF THE CHANCELLOR)/TEACHERS (TEACHER WITH TENURE WHO RESIGNED AND WAS THEN REHIRED WAS NOT REHIRED WITH TENURE; THE TEACHER FAILED TO COMPLY WITH THE REGULATION REQUIRING A WRITTEN WITHDRAWAL OF THE RESIGNATION SUBJECT TO THE APPROVAL OF THE CHANCELLOR)/TENURE  (TEACHER WITH TENURE WHO RESIGNED AND WAS THEN REHIRED WAS NOT REHIRED WITH TENURE; THE TEACHER FAILED TO COMPLY WITH THE REGULATION REQUIRING A WRITTEN WITHDRAWAL OF THE RESIGNATION SUBJECT TO THE APPROVAL OF THE CHANCELLOR)

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FATHER DEEMED TO HAVE CONSENTED ON BEHALF OF HIS INFANT SON TO THE RECORDING OF THREATS MADE AGAINST HIS SON BY DEFENDANT; ABSENT THE VICARIOUS CONSENT, THE RECORDING WOULD HAVE CONSTITUTED ILLEGAL EAVESDROPPING AND WOULD NOT HAVE BEEN ADMISSIBLE IN COURT.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a three-judge dissent, determined father’s recording of threats made to his infant son by mother’s boyfriend was not eavesdropping, which is prohibited by statute. Rather, father was deemed to have consented to the recording on his son’s behalf. Father had attempted to call the child’s mother. For some reason, the cell phone call went through but was not picked up by anyone. Father could hear the boyfriend threaten to beat his son. Using a cell phone function, the boyfriend’s words were recorded. The boyfriend was subsequently arrested for assault against the child and endangering the welfare of a child. The recording was played at trial. Recording conversations is prohibited in New York as illegal eavesdropping, unless one of the parties to the conversation consents. Here, the Court of Appeals determined the eavesdropping prohibition did not apply because the child was deemed to have consented to the recording. In addition, the Court of Appeals found the trial judge’s erroneous jury instruction, which allowed the jury to consider an accomplice theory not charged in the indictment, constituted harmless error. The court concluded, based upon the trial evidence, the jury could not have convicted the defendant of any offense other than what was charged. With respect to the recorded conversation, the court wrote:

There is no basis in legislative history or precedent for concluding that the New York Legislature intended to subject a parent or guardian to criminal penalties for the act of recording his or her minor child’s conversation out of a genuine concern for the child’s best interests. By contrast, the vicarious consent doctrine recognizes the long-established principle that the law protects the right of a parent or guardian to take actions he or she considers to be in his or her child’s best interests. Yet it also recognizes important constraints on that right, by requiring that the parent or guardian believe in good faith that it is necessary for the best interests of the child to make the recording, and that this belief be objectively reasonable. People v Badalamenti, 2016 NY Slip Op 02556, CtApp 2016

CRIMINAL LAW (EASVESDROPPING, FATHER DEEMED TO HAVE CONSENTED ON BEHALF OF HIS INFANT SON TO THE RECORDING OF THREATS MADE AGAINST HIS SON BY DEFENDANT; ABSENT THE VICARIOUS CONSENT, THE RECORDING WOULD HAVE CONSTITUTED ILLEGAL EAVESDROPPING AND WOULD NOT HAVE BEEN ADMISSIBLE IN COURT)/EVIDENCE (EASVESDROPPING, FATHER DEEMED TO HAVE CONSENTED ON BEHALF OF HIS INFANT SON TO THE RECORDING OF THREATS MADE AGAINST HIS SON BY DEFENDANT; ABSENT THE VICARIOUS CONSENT, THE RECORDING WOULD HAVE CONSTITUTED ILLEGAL EAVESDROPPING AND WOULD NOT HAVE BEEN ADMISSIBLE IN COURT)/EASVESROPPING FATHER DEEMED TO HAVE CONSENTED ON BEHALF OF HIS INFANT SON TO THE RECORDING OF THREATS MADE AGAINST HIS SON BY DEFENDANT; ABSENT THE VICARIOUS CONSENT, THE RECORDING WOULD HAVE CONSTITUTED ILLEGAL EAVESDROPPING AND WOULD NOT HAVE BEEN ADMISSIBLE IN COURT)/PARENT-CHILD (EASVESDROPPING, FATHER DEEMED TO HAVE CONSENTED ON BEHALF OF HIS INFANT SON TO THE RECORDING OF THREATS MADE AGAINST HIS SON BY DEFENDANT; ABSENT THE VICARIOUS CONSENT, THE RECORDING WOULD HAVE CONSTITUTED ILLEGAL EAVESDROPPING AND WOULD NOT HAVE BEEN ADMISSIBLE IN COURT)

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COURT PROPERLY EXCLUDED SPECULATIVE EVIDENCE OF THIRD-PARTY CULPABILITY; THERE IS NO HEIGHTENED STANDARD FOR ADMISSIBILITY OF THIRD-PARTY CULPABILITY EVIDENCE; RATHER THE USUAL PROBATIVE VS PREJUDICIAL BALANCING TEST APPLIES.

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined, under an abuse of discretion standard, evidence of third-party culpability was properly excluded as speculative. Defendant was not, therefore, deprived of his constitutional right to present a complete defense when the trial court precluded evidence the defendant’s brother, Warren, was the beneficiary of a $500,000 life insurance policy taken out by the murder victim.  Here defense counsel made no specific attempt to demonstrate Warren killed the victim. Defense counsel made only vague assertions “others” could have committed the crime. The Court of Appeals made it clear there is no heightened standard for the admissibility of evidence of third-party culpability. Rather courts should apply the usual balancing test and exclude such evidence where it has slight probative value and a strong potential for undue prejudice, delay and confusion or where the evidence is so remote it does not connect the third party to the crime:

… [A]dmission of third-party culpability evidence does not necessarily require a specific accusation that an identified individual committed the crime. For example, a proffer of an unknown DNA profile may be sufficient. And we reject the trial court’s assertion that such a specific accusation “is an essential element of third-party culpability.” Such a requirement would conflict with the balancing analysis that we … reaffirm today. Nevertheless, defense counsel’s argument must be assessed based on the proffer as articulated … . The trial court was within its discretion in finding that proffer speculative and in determining the evidence to support it would have caused undue delay, prejudice, and confusion. People v Powell, 2016 NY Slip Op 02555, CtApp 4-5-16

CRIMINAL LAW (CRIMINAL LAW, COURT PROPERLY EXCLUDED SPECULATIVE EVIDENCE OF THIRD-PARTY CULPABILITY)/EVIDENCE (CRIMINAL LAW, THIRD-PARTY CULPABILITY, THERE IS NO HEIGHTENED STANDARD FOR ADMISSIBILITY OF THIRD-PARTY CULPABILITY EVIDENCE, RATHER THE USUAL PROBATIVE VS PREJUDICIAL BALANCING TEST APPLIES)/THIRD PARTY CULPABILITY (CRIMINAL LAW, THERE IS NO HEIGHTENED STANDARD FOR ADMISSIBILITY OF THIRD-PARTY CULPABILITY EVIDENCE, RATHER, THE USUAL PROBATIVE VS PREJUDICIAL BALANCING TEST APPLIES)

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