explanation challenge in New York

2022In addition, the court's explanation that the waiver would foreclose any review by a higher court "utterly 'mischaracterized the nature of the right [that] defendant was being asked to cede' " ( People v Thomas , 34 NY3d 545 , 565 [2019], cert denied — US &mdash, 140 S Ct 2634 [2020]; see People v Youngs , 183 AD3d 1228, 1229 [4th Dept 2020], lv denied 35 NY3d 1050 [2020]).

2022As the People correctly concede, defendant's waiver of the right to appeal is invalid inasmuch as the court's explanation that the waiver would foreclose any review by a higher court "utterly 'mischaracterized the nature of the right [that] defendant was being asked to cede' " ( People v Thomas , 34 NY3d 545 , 565 [2019], cert denied — US —, 140 S Ct 2634 [2020]; see People v Youngs , 183 AD3d 1228, 1228-1229 [4th Dept 2020], lv denied 35 NY3d 1050 [2020]).

2007People v Richardson, 100 NY2d 847, 853 [2003]; People v Allen, 86 NY2d 101, 111 [1995]) his present claims that, in making its ruling on defendant’s Batson application, the court improperly considered defendant’s own pattern of challenges; that the court failed to articulate its reasons for finding that the prosecutor’s explanations were nonpretextual; and that the prosecutor’s explanation for a challenge he made to another juror in a later round of voir dire supports the conclusion that his earlier challenges were pretextual, and we decline to review them in the interest of justice.

2001The trial court’s determination that the defendant’s explanation for the challenge constituted mere pretext is supported by the record (see, Batson v Kentucky, 476 US 79 ; People v Allen, 86 NY2d 101, 110 ; People v Richie, 217 AD2d 84 ).

2001The trial court’s determination that the defendant’s explanation for the challenge constituted mere pretext is supported by the record (see, Batson v Kentucky, 476 US 79 ; People v Allen, 86 NY2d 101, 110 ; People v Richie, 217 AD2d 84 ).

1999The explanation of the defense counsel that the prospective juror might be too tired from the pressure of combining his work schedule and jury service was purely intuitive, and was not supported by any statement of the challenged juror (see, People v Lowery, 256 AD2d 594; People v Thompson, 245 AD2d 321 ; People v Richie, 217 AD2d 84 ; see also, Batson v Kentucky, 476 US 79 ).

2024While Dr. McGowan doesn't provide a basis for this opinion, or an explanation of the standard referenced ( see Amatulli, 77 NY2d at 533, n 2 ; Hotaling, 55 AD3d at 398 [1st Dept 2008]; Jones , 32 AD3d at 707 ; s ee also Veccia v Clearmeadow Pistol Club , 300 AD2d 472 [2002] [defendant was entitled to summary judgment where, inter alia, plaintiff's expert "did not sufficiently identify any specific industry standard upon which he relied"]), the more compelling problem with this assertion is that the record before this Court shows that decedent was on the ledge before the hotel was contacted or

2024While Dr. McGowan doesn't provide a basis for this opinion, or an explanation of the standard referenced ( see Amatulli, 77 NY2d at 533, n 2 ; Hotaling, 55 AD3d at 398 [1st Dept 2008]; Jones , 32 AD3d at 707 ; s ee also Veccia v Clearmeadow Pistol Club , 300 AD2d 472 [2002] [defendant was entitled to summary judgment where, inter alia, plaintiff's expert "did not sufficiently identify any specific industry standard upon which he relied"]), the more compelling problem with this assertion is that the record before this Court shows that decedent was on the ledge before the hotel was contacted or

2023Accordingly, given the invalid appeal waiver, defendant's challenge to the severity of his sentence is not precluded ( see People v Tiggs , 216 AD3d 1357, 1357 [3d Dept 2023], lv denied ___ NY3d ___ [Aug. 29, 2023]).

2022Nevertheless, we reject defendant's contention that the court erred in denying without a hearing his pro se request to withdraw his guilty plea. " 'Permission to withdraw a guilty plea rests solely within the court's discretion . . . , and refusal to permit withdrawal does not constitute an abuse of that discretion unless there is some evidence of innocence, fraud, or mistake in inducing the plea' " ( People v Davis , 129 AD3d 1613, 1614 [4th Dept 2015], lv denied 26 NY3d 966 [2015]).

2021By failing to move to withdraw the plea or vacate the judgment of conviction, defendant failed to preserve for our review his contention that his plea was involuntary because he did not demonstrate, in a narrative fashion, his understanding of the criminal acts relevant to the charge for which he pleaded guilty ( see People v Williams , 118 AD3d 1429, 1430 [4th Dept 2014]).

2016There is no basis to disturb the court’s credibility determination that this explanation for the challenge was not pretextual, a finding that is supported by the record and entitled to great deference (see Snyder v Louisiana, 552 US 472, 477 [2008]; People v Hernandez, 75 NY2d 350 [1990], affd 500 US 352 [1991]).

2015Petitioner’s remaining contentions, including that he was denied the assistant of his choice and that the Hearing Officer improperly denied him access to the confidential mental health testimony, are unpreserved for our review given his failure to raise them at the hearing (see Matter of Robinson v Annucci, 122 AD3d 981 , 982 *1483 [2014]; Matter of Abrams v Fischer, 109 AD3d 1030, 1031 [2013]).

2015Petitioner’s plea of guilty with an explanation precludes a challenge to the sufficiency of the evidence supporting the determination of guilt (see Matter of Campbell v Bedard, 123 AD3d 1278, 1278 [2014]; Matter of Ramos v Annucci, 121 AD3d 1486, 1486 [2014]).

2015Petitioner’s plea of guilty with an explanation precludes a challenge to the sufficiency of the evidence supporting the determination of guilt (see Matter of Campbell v Bedard, 123 AD3d 1278, 1278 [2014]; Matter of Ramos v Annucci, 121 AD3d 1486, 1486 [2014]).

2014We also note that, although the Supreme Court has the authority to determine the reasonable compensation of the court evaluator and the court-appointed attorney who represented Mae R. pursuant to Mental Hygiene Law § 81.09 (c) (7) and (f), the court fixed the amount of their fees without providing an explanation of the factors it considered or the basis for arriving at the amounts awarded (see Matter of Samuel S. [Helene S.], 96 AD3d at 958; Matter of Theodore T. [Charles T.], 78 AD3d 955, 957 [2010]).

2014Accordingly, on remittal, the court must make a new determination as to the amount of those awards, setting forth the reasons therefor and the factors considered (see Matter of Theodore T. [Charles T.], 78 AD3d at 957 ).

2014We also note that, although the Supreme Court has the authority to determine the reasonable compensation of the court evaluator and the court-appointed attorney who represented Mae R. pursuant to Mental Hygiene Law § 81.09 (c) (7) and (f), the court fixed the amount of their fees without providing an explanation of the factors it considered or the basis for arriving at the amounts awarded (see Matter of Samuel S. [Helene S.], 96 AD3d at 958; Matter of Theodore T. [Charles T.], 78 AD3d 955, 957 [2010]).

2007People v Richardson, 100 NY2d 847, 853 [2003]; People v Allen, 86 NY2d 101, 111 [1995]) his present claims that, in making its ruling on defendant’s Batson application, the court improperly considered defendant’s own pattern of challenges; that the court failed to articulate its reasons for finding that the prosecutor’s explanations were nonpretextual; and that the prosecutor’s explanation for a challenge he made to another juror in a later round of voir dire supports the conclusion that his earlier challenges were pretextual, and we decline to review them in the interest of justice.

2005Inasmuch as petitioner acquiesced in the witness’s refusal to testify and did not ask at the hearing that the witness be called, he is precluded from now asserting that he was improperly denied this witness (see Matter of Victor v Goord, 253 AD2d 971, 971 [1998]; compare Matter of Martinez v Goord, 15 AD3d 737 [2005] [when a request is made at the hearing for the testimony of a witness who has reportedly refused to testify without providing any reason, the inmate’s right to an explanation by the hearing officer as to the validity of such refusal is preserved]).

2005Inasmuch as petitioner acquiesced in the witness’s refusal to testify and did not ask at the hearing that the witness be called, he is precluded from now asserting that he was improperly denied this witness (see Matter of Victor v Goord, 253 AD2d 971, 971 [1998]; compare Matter of Martinez v Goord, 15 AD3d 737 [2005] [when a request is made at the hearing for the testimony of a witness who has reportedly refused to testify without providing any reason, the inmate’s right to an explanation by the hearing officer as to the validity of such refusal is preserved]).