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Fourth Department

Jun 2, 2011

Indictment Date: People v. Nappi

Appellate Division, Fourth Department Indictment Date People v. Nappi KA 10-00826 Appealed from Herkimer County Court Background: After a jury trial convicting the defendant of criminal possession of a weapon, he contended that the date stated in the indictment varied from the date established at trial. The indictment alleged “on or about the 5th day […]

Jun 2, 2011

Guilty Plea: People v. Hernandez

Appellate Division, Fourth Department Guilty Plea Postrelease Supervision People v. Hernandez KA 07-00531 Appealed from Monroe County Background: When the defendant pleaded guilty to attempted robbery in the second degree, the judge only informed him that he would receive the minimum period of postrelease supervision. On appeal the defendant challenged the voluntariness of the plea. […]

Jun 2, 2011

Ineffective Assistance of Counsel: People v. Kilbury

Appellate Division, Fourth Department Ineffective Assistance of Counsel Severance People v. Kilbury KA 07-01561 Appealed from Onondaga County Court Background: The defendant was convicted of several counts of sexual assault after a jury trial. On appeal he argued that his trial attorney was constitutionally deficient. His attorney did not move to sever 11 counts that […]

Jun 2, 2011

Speedy Trial: People v. Faro

Appellate Division, Fourth Department Speedy Trial Preservation People v. Faro KA 09-00278 Appealed from Monroe County Court Background: The defendant pleaded guilty to possessing a forged instrument. On appeal he contended that he was denied his statutory and constitutional right to a speedy trial. Ruling: A guilty plea waives the statutory right to a speedy […]

Jun 2, 2011

Assumption of Risk: Renee v. North Collins Central School Dist.

Appellate Division, Fourth Department Assumption of Risk Level of Experience Renee v. North Collins Central School Dist. CA 10-2520 Appeal from the Supreme Court, Erie County Background: The plaintiff commenced this action after her daughter suffered injury when she slid into second base during a softball game. The defendant moved to dismiss on the grounds […]

Jun 2, 2011

Anticipatory Repudiation: Howard v. Bioworks Inc.

Appellate Division, Fourth Department Anticipatory Repudiation Howard v. Bioworks Inc. CA 10-02497 Appeal from the Supreme Court, Ontario County   Background: The plaintiff commenced a breach of contract action against the defendant alleging that the defendant failed to pay him deferred compensation for prior services that he had performed pursuant to a written agreement. The agreement […[...]

Jun 2, 2011

Municipal Home Rule: Horan v. Town of Tonawanda

Appellate Division, Fourth Department Municipal Home Rule Notice Horan v. Town of Tonawanda CA 10-02522 Appeal from the Supreme Court, Erie County Background: The plaintiff brought the action seeking damages for injuries she had sustained when she tripped over a pothole in a road owned and maintained by the defendant. The lower court ordered the […]

May 26, 2011

Sex Offender Registration Act: People v. Tooley

Appellate Division, Fourth Department Sex Offender Registration Act Upward Departure People v. Tooley KA 10-00357 Background: Defendant was adjudicated a Level 3 offender (high risk) under the Sex Offender Registration Act. On appeal he argued that an “upward departure” to Level 3 was unwarranted. Ruling: Order affirmed. During the precedence interview, defendant admitted to abusing […]

May 26, 2011

Exotic Dancer Evidence: People v. Agostini

Appellate Division, Fourth Department Exotic Dancer Evidence Prior Bad Act Evidence People v. Agostini KA 11-00007 Appealed from Onondaga County Court Background: Defendant was convicted after jury trial of Manslaughter 1st degree and Criminal Possession of a Weapon 3rd. In questioning defendant’s wife, the prosecutor brought out her earlier employment as an exotic dancer. Ruling: […]

May 26, 2011

Open Meetings Law: Thomas v. Town of Chautauqua, et al.

Appellate Division, Fourth Department Open Meetings Law Zoning Thomas v. Town of Chautauqua, et al. CA 10-02314 Appealed from Supreme Court, Chautauqua County Background: The petitioners commenced an article 78 and declaratory action proceeding to annul the determination that approved the demolition of a cottage and permitted the construction of a two-family home owned by […]

May 25, 2011

Mode of Proceedings Error: People v. Kalinowski

Appellate Division, Fourth Department Mode of Proceedings Error Jury Note People v. Kalinowski KA 09-01627 Appealed from Erie County Court Background: Defendant was convicted of Murder 2nd degree. During deliberations, the jury asked for information about the path of the bullet and autopsy report. The judge did not read the jury’s note into the record, […]

May 25, 2011

Attempted Murder: People v. Hawkins

Appellate Division, Fourth Department Attempted Murder Missing Witness Charge People v. Hawkins KA 07-02085 Appealed from Supreme Court, Monroe County Background: Defendant was convicted of Attempted Murder 2d degree and other felonies. On appeal the contended that the trial judge erred in denying his request for a missing witness charge. Ruling: Conviction affirmed. The prosecution […]

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