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Appellate Division

May 11, 2015

Fourth Department – Youthful Offender: People v. Angel T.C.

Appellate Division, Fourth Department – Youthful Offender – Appellate Discretion People v. Angel T.C. KA 13-01936 Appealed from Genesee County Court Background: The defendant pleaded guilty to criminal possession of stolen property fourth degree, based upon his actions with others in stealing a car. At sentencing, the judge denied youthful offender status. Ruling: Judgment modified, a[...]

May 11, 2015

Fourth Department – Subpoena Duces Tecum: Ziolokowski v. Han-Tek Inc.

Appellate Division, Fourth Department – Subpoena Duces Tecum – Relevance – Affirmative Defense   Ziolokowski v. Han-Tek Inc. CA 14-01371 Appealed from Supreme Court, Erie County   Background: The plaintiff commenced an action seeking damages for injuries he sustained in a work-related accident. The attorney for the defendant issued a subpoena duces tecum directing the pla[...]

May 8, 2015

Fourth Department – Breach of Contract: Town Board of Town of Brighton v. West Brighton Fire Department

Appellate Division, Fourth Department – Breach of Contract – Volunteer Fire Department – Specific Performance   Town Board of Town of Brighton v. West Brighton Fire Department CA 14-01110 Appealed from Supreme Court, Monroe County   Background: The petitioners commenced a hybrid article 78 proceeding and declaratory judgment action seeking a declaration that the responden[...]

May 8, 2015

Fourth Department – Motion to Dismiss: Tudisco v. Mincer

Appellate Division, Fourth Department – Motion to Dismiss – Statute of Frauds – Supporting Pleadings   Tudisco v. Mincer CA 14-01305 Appealed from Supreme Court, Monroe County   Background: The plaintiff commenced an action to enforce an oral agreement concerning the purchase of residential property. The defendant moved to dismiss on the ground that the alleged agreement [...]

May 8, 2015

Fourth Department – Malicious Prosecution and False Arrest: Washington v. Town of Greece

Appellate Division, Fourth Department – Malicious Prosecution and False Arrest – Active Role – Mall Security   Washington v. Town of Greece CA 14-00373 Appealed from Supreme Court, Monroe County   Background: The lawsuit stems from an altercation between the plaintiff and security personnel at the Greece Mall. As a result of the altercation, the plaintiff was […]

May 7, 2015

Fourth Department – Guilty Plea: People v. Vanvleet

Appellate Division, Fourth Department – Guilty Plea – Failure to Provide Discovery People v. Vanvleet KA 14-00033 Appealed from Seneca County Court Background: The defendant pleaded guilty to criminal mischief, second degree. On appeal, he challenged the prosecution’s failure to provide certain discovery and to respond to his demand for a bill of particulars. Ruling: […]

May 6, 2015

Fourth Department – Tax Assessment: The Torok Trust v. Town of Alexandria

Appellate Division, Fourth Department – Tax Assessment – Unlawful – Three-year Assessment Freeze – Refunds   The Torok Trust v. Town of Alexandria CA 14-01460 Appealed from Supreme Court, Jefferson County   Background: The petitioner commenced a tax certiorari proceeding seeking to reduce the assessment on its property for 2007. The parties reached an agreement […]

May 6, 2015

Fourth Department – Juvenile Delinquent: Matter of Jacob A.T.

Appellate Division, Fourth Department – Juvenile Delinquent – Least Restrictive Disposition   Matter of Jacob A.T. CAF 14-01015 Appealed from Family Court, Yates County   Background: The respondent appealed from three orders, each adjudicating him to be a juvenile delinquent based on the finding that he committed petit larceny and criminal possession of stolen property. [&hel[...]

May 5, 2015

Fourth Department – Account Stated: Schwerzmann & Wise v. Town of Hounsfield

Appellate Division, Fourth Department – Account Stated – Retention of Bills – Inference of Agreement to the Balance Due   Schwerzmann & Wise v. Town of Hounsfield CA 14-00940 Appealed from Supreme Court, Jefferson County   Background: The plaintiff law firm commenced an action seeking to collect unpaid legal fees allegedly owed by the defendant […]

May 5, 2015

Fourth Department – Body Stealing: People v. Vickers

Appellate Division, Fourth Department – Body Stealing – Effective Assistance of Counsel People v. Vickers KA 11-01020 Appealed from Supreme Court, Monroe County Background: The defendant was one of several who were convicted of body stealing, opening graves and unlawful dissection of a body. He contended on appeal that the evidence was legally insufficient, and […]

May 4, 2015

Fourth Department – Child Custody: Matter of Martha S.

Appellate Division, Fourth Department –  Child Custody – Neglect –  Consent to Order – Appeal   Matter of Martha S. CAF 13-01091 Appealed from Family Court, Genesee County   Background: The respondent mother appeals from an order that found she neglected the subject children.   Ruling: The Appellate Division dismissed the appeal. The court noted […]

May 4, 2015

Fourth Department – Sex Offender Registration Act

Appellate Division, Fourth Department – Sex Offender Registration Act – Upward Departure People v. Sczerbaniewicz KA 14-00721 Appealed from Onondaga County Court Background: The defendant was found to be a Level III offender, high risk, under SORA. He challenged the finding of an “upward departure” that the judge applied from the presumptive risk level. The […]

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