green
Positive treatment
Issue: statutory written notice requirementNY ↗
Issue: significance of the appeal waiverNY ↗
Issue: indictment was obtained violationNY ↗
12.8 score
Treatment trajectory · 2016 → 2026 · click a year to view as-of
2016
2021
2026
Top citers, strongest first. 17 distinct citers.
How cited ↗
discussed
Cited "see"
People v. Hall
The requirements of CPL 190.50 are to be strictly enforced" ( People v Kirk , 96 AD3d 1354 , 1358-1359 [4th Dept 2012], lv denied 20 NY3d 1012 [2013] [internal quotation marks omitted]; see People v Wilkerson , 140 AD3d 1297 , 1299 [3d Dept 2016], lv denied 28 NY3d 938 [2016]; People v Anderson , 192 AD2d 714, 714 [2d Dept 1993]).
discussed
Cited "see"
People v. Miller
While the People's notice gave defendant approximately 24 hours or less to exercise his statutory right to appear at the grand jury proceeding, this was a reasonable period of time pursuant to the statute as there were no exceptional circumstances that precluded defendant from conferring with his attorney about the decision to testify or otherwise inhibited his ability to notify the People of his intent to testify ( see People v Dorsey , 151 AD3d 1391, 1392-1393 [2017], lv denied 30 NY3d 949 [2017]; see generally People v Wilkerson , 140 AD3d 1297, 1299-1300 [2016], lv denied 28 NY3d 938 [2016…
discussed
Cited "see"
People v. Wilson
Here, although defendant signed such a written waiver, "the record establishes that County Court did not sufficiently explain the significance of the appeal waiver or ascertain defendant's understanding thereof" ( id. ; see People v Welcher , 138 AD3d 1481, 1482 [4th Dept 2016], lv denied 28 NY3d 938 [2016]; cf. People v Ramos , 7 NY3d 737, 738 [2006]).
discussed
Cited "see"
People v. Wisner
Here, although defendant signed such a written waiver, "the record establishes that County Court did not sufficiently explain the significance of the appeal waiver or ascertain defendant's understanding thereof" ( id. ; see People v Welcher , 138 AD3d 1481, 1482 [4th Dept 2016], lv denied 28 NY3d 938 [2016]; cf. People v Ramos , 7 NY3d 737, 738 [2006]).
discussed
Cited "see"
People v. Curry
“A person is guilty of robbery in the second degree when he [or she] forcibly steals property and when . . . [i]n the course of the commission of the crime or of immediate flight therefrom, he [or she] . . . [clauses physical injury to any person who is not a participant in the crime” (Penal Law § 160.10 [2] [a]; accord People v Wilkerson, 140 AD3d 1297, 1301 [2016], Iv denied 28 NY3d 938 [2016]; People v Lawrence, 141 AD3d 828, 830 [2016], Iv denied 28 NY3d 1073 [2016]).
discussed
Cited "see"
People v. Cruz
According “great deference” to that credibility determination, we find that the verdict was supported by the weight of the evidence (People v Bleakley, 69 NY2d 490, 495 [1987]; see People v Wilkerson, 140 AD3d 1297, 1301-1303 [2016], Iv denied 28 NY3d 938 [2016]; People v Murphy, 66 AD3d 1234, 1235-1236 [2009]). *824 Contrary to defendant’s further contention, his conviction for assault in the second degree (see Penal Law § 120.05 [2]) need not be dismissed as an inclusory concurrent count of his conviction for either robbery in the first degree (see Penal Law § 160.15 [3]) or robbery …
discussed
Cited "see"
People v. Cherry
Although defendant initially contends that the indictment was obtained in violation of his statutory right to testify before the grand jury, this argument was waived “since he did not move to dismiss the indictment upon such ground within five days of arraignment [upon the indictment] as required by [CPL 190.50 (5) (c)]” (People v Yontz, 116 AD3d 1242, 1244 [2014], lv denied 23 NY3d 1026 [2014]; see People v Welden, 140 AD3d 1406, 1406 [2016], lv denied 28 NY3d 938 [2016]).
discussed
Cited "see"
People v. Cherry
Although defendant initially contends that the indictment was obtained in violation of his statutory right to testify before the grand jury, this argument was waived “since he did not move to dismiss the indictment upon such ground within five days of arraignment [upon the indictment] as required by [CPL 190.50 (5) (c)]” (People v Yontz, 116 AD3d 1242, 1244 [2014], lv denied 23 NY3d 1026 [2014]; see People v Welden, 140 AD3d 1406, 1406 [2016], lv denied 28 NY3d 938 [2016]).
discussed
Cited "see"
KING, MICHAEL, PEOPLE v
That contention does not survive his guilty plea because defendant failed to demonstrate that “the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [defense counsel’s] allegedly poor performance” (People v Lucieer, 107 AD3d 1611, 1612 [internal quotation marks omitted]; see People v VanVleet, 140 AD3d 1633, 1633 , lv denied 28 NY3d 938 ).
discussed
Cited "see"
People v. King
That contention does not survive his guilty plea because defendant failed to demonstrate that “the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [defense counsel’s] allegedly poor performance” (People v Lucieer, 107 AD3d 1611, 1612 [2013] [internal quotation marks omitted]; see People v VanVleet, 140 AD3d 1633, 1633 [2016], lv denied 28 NY3d 938 [2016]).
discussed
Cited "see"
People v. King
That contention does not survive his guilty plea because defendant failed to demonstrate that “the plea bargaining process was infected by [the] allegedly ineffective assistance or that defendant entered the plea because of [defense counsel’s] allegedly poor performance” (People v Lucieer, 107 AD3d 1611, 1612 [2013] [internal quotation marks omitted]; see People v VanVleet, 140 AD3d 1633, 1633 [2016], lv denied 28 NY3d 938 [2016]).
discussed
Cited "see, e.g."
People v. Williams (Paul)
Defendant's request for vacatur of his conviction of aggravated harassment in the second degree on the basis that Penal Law § 240.30(1)(a) has been declared unconstitutional by the Court of Appeals ( see People v Golb , 23 NY3d 455 , 467—468 [2014], cert denied 574 US 1079 [2015]), is unpreserved ( see People v Scott , 126 AD3d 645 [2015], lv denied 25 NY3d 1171 [2015]; see also People v Ward , 136 AD3d 504 [2016], lv denied 28 NY3d 938 [2016]).
discussed
Cited "see, e.g."
People v. Brown
Most importantly, many of the convictions under former Penal Law § 240.30 (1)(c), which occurred before Golb was decided[*2], were not vacated at all, notwithstanding that a defendant affirmatively sought such relief ( People v Scott , 126 AD3d 645 [1st Dept 2015], lv denied 25 NY3d 1171 [2015][where the defendant failed to preserve any constitutional argument, conviction would not be vacated] [FN1] ; see also People v Ward , 136 AD3d 504 [1st Dept 2016], lv denied 28 NY3d 938 [2016]; People v Irizarry , 135 AD3d 641 [1st Dept 2016], lv denied 28 NY3d 931 [2016]).
discussed
Cited "see, e.g."
People v. Ellis (Larkin)
Although the order of protection was issued upon defendant's 2011 conviction of aggravated harassment, pursuant to a provision of the Penal Law that was subsequently declared unconstitutional by the Court of Appeals ( see People v Golb , 23 NY3d 455 , 467—468 [2014], cert denied __ US__, 135 S Ct 1009 [2015]), defendant's conviction was final before Golb was decided ( see generally People v Scott , 126 AD3d 645 , 646-647 [2015], lv denied 25 NY3d 1171 [2015]; see also People v Ward , 136 AD3d 504 [2016], lv denied 28 NY3d 938 [2016]).
discussed
Cited "see, e.g."
People v. Leibovitz (Etan)
Defendant's request for vacatur of his conviction of aggravated harassment in the second degree on the basis that Penal Law § 240.30(1)(a) has been declared unconstitutional by the Court of Appeals ( see People v Golb , 23 NY3d 455 , 467—468 [2014], cert denied 135 S Ct 1009 [2015]), is unpreserved ( see People v Scott , 126 AD3d 645 [2015], lv denied 25 NY3d 1171 [2015]; see also People v Ward , 136 AD3d 504 [2016], lv denied 28 NY3d 938 [2016]).
discussed
Cited "see, e.g."
People v. Smith (Jeremiah)
Defendant's request for vacatur of his conviction of aggravated harassment in the second degree on the basis that Penal Law § 240.30(1)(a) has been declared unconstitutional by the Court of Appeals ( see People v Golb , 23 NY3d 455 , 467—468 [2014], cert denied 135 S.Ct. 1009 [2015]), is unpreserved ( see People v Scott , 126 AD3d 645 [2015], lv denied 25 NY3d 1171 [2015]; see also People v Ward , 136 AD3d 504 [2016], lv denied 28 NY3d 938 [2016]).
discussed
Cited "see, e.g."
People v. Smith (Adrian)
Defendant's request for vacatur of his nine convictions of aggravated harassment in the second degree on the basis that Penal Law § 240.30(1)(a) has been declared unconstitutional by the Court of Appeals after entry of the judgments against him ( see People v Golb , ( 23 NY3d 455, 467-468 [2014], cert. denied 135 S. Ct. 1009 [2015]), is unpreserved and we decline to review it in the interest of justice ( see People v Scott , 126 AD3d 645 [2015], lv denied 25 NY3d 1171 [2015]; see also People v Ward , 136 AD3d 504 [2016], lv denied 28 NY3d 938 [2016] ; People v Irizarry , 135 AD3d 641 , 642 [2…
Retrieving the full opinion text from the archive…
People
v.
Truitt
v.
Truitt
Published
4th Dept: 132 AD3d 1268 (Erie)
denied reconsideration 8/24/16 (Abdus-Salaam, J-) (Appeal No. 1)