distinction between waiver in New York

2019The County Court did not adequately explain the nature of the right to appeal, nor did it ensure the defendant's understanding of the distinction between the waiver of his right to appeal and other rights automatically forfeited upon a plea of guilty ( see People v Rivas , 166 AD3d 1019 ; People v Pelaez , 100 AD3d 803 ).

2019Moreover, the court's colloquy did not ensure the defendant's understanding of the distinction between the waiver of his right to appeal and other rights automatically forfeited on a plea of guilty ( see People v Rivas , 166 AD3d 1019 ; People v Melendez , 164 AD3d 1473 ; People v Waldon , 157 AD3d at 913-914; People v Pelaez , 100 AD3d at 803 ).

1992The Supreme Court has repeatedly admonished that " 'the constitutionality of statutes ought not be decided except in an actual factual setting that makes such a decision necessary.’ ” (Keystone Bituminous Coal Assn. v DeBenedictis, 480 US 470, 494 , quoting Hodel v Virginia Surface Min. & Reclamation Assn., 452 US 264, 294-295 .) A statute is presumed to be constitutional.

1989Statutes undergoing constitutional challenge as facially invalid in a takings context enjoy even greater deference because there is "an important distinction between a claim that the mere enactment of a statute constitutes a taking and a claim that the particular impact of government action on a specific piece of property requires the payment of just compensation” (Keystone Bituminous Coal Assn. v DeBenedictis, 480 US 470, 494 ).

1911License.) Chancellor Kent says: “This distinction between a privilege or easement, carrying an interest in land, and requiring a writing within the Statute of Frauds to sup-' port it, and a license which may be by parol, is quite subtle, and it becomes difficult in some of the cases to discern a substantial difference between them.” (3 Kent Comm. 452.) In Mumford v. Whitney (supra) plaintiff sued to recover damages for the overflowing of his lands by the erection of a dam. by the defendant.

1899It is founded in personal confidence, and is not assignable.” The learned commentator adds, “ This distinction between a privilege or easement carrying an interest in land, and requiring a writing within the statute of frauds to support it, and a license which may be by parol, is quite subtle, and it becomes difficult, in some of the cases to discern a substantial difference between them.” The case of Mumford v. Whitney, 15 Wend. 380 , contains an able review of many of the conflicting cases.

2024"Whereas waiver results from a knowing, voluntary and intelligent decision, forfeiture occurs by operation of law, [*5]based on objective facts and circumstances and without regard to defendant's actual state of mind" ( People v Corley , 67 NY2d 105, 110 ).

2024"Whereas waiver results from a knowing, voluntary and intelligent decision, forfeiture occurs by operation of law, based on objective facts and circumstances and without regard to defendant's actual state of mind" ( People v Corley , 67 NY2d 105, 110 ).

2020The Supreme Court's colloquy did not ensure that the defendant understood the distinction between his waiver of the right to appeal and the other trial rights that are automatically forfeited upon a plea of guilty ( see People v Farray , 172 AD3d 1401 , 1401; People v Ortiz , 167 AD3d 658 , 658; People v Rivas , 166 AD3d 1019 , 1020; People v Medina , 161 AD3d 778 , 779; People v Diaz , 146 AD3d 803, 804 ).

2020The Supreme Court's colloquy failed to sufficiently advise the defendant of the nature of his right to appeal, and to assure that the defendant understood the distinction between the waiver of his right to appeal and other rights automatically forfeited upon a plea of guilty ( see People v Weeks , _____ AD3d _____, _____, 2020 NY Slip Op 02198, *1-2 [2d Dept]; People v Smalls , 178 AD3d 738 , 738-739; People v Birch , 171 AD3d 938 , 939).

2020Moreover, although the defendant executed a written waiver of his right to appeal, the written waiver contained erroneous statements with regard to the issues encompassed by the waiver of the right to appeal, and the court's oral colloquy was insufficient to cure the misleading written waiver ( see People v Thomas , 34 NY3d at 564-566; People v Wilkinson , 176 AD3d 879 ).

2020The Supreme Court's colloquy did not ensure that the defendant understood the distinction between his waiver of the right to appeal and the other trial rights that are automatically forfeited upon a plea of guilty ( see People v Farray , 172 AD3d 1401 , 1401; People v Ortiz , 167 AD3d 658 , 658; People v Rivas , 166 AD3d 1019 , 1020; People v Medina , 161 AD3d 778 , 779; People v Diaz , 146 AD3d 803, 804 ).

2018There is a distinction between a waiver or deprivation of the right to counsel and the failure to avail oneself of that right, and here, the record establishes that petitioner failed to exercise its right to counsel ( see Matter of Rosengart [Armstrong Daily], 6 AD2d 1052 [2d Dept 1958]).

2017While courts have occasionally attempted to draw a distinction between a waiver and an election of remedies, these distinctions are mostly a matter of semantics (see ESPN, Inc. v *283 Office of Commr. of Baseball, 76 F Supp 2d 383, 388-392 [SD NY 1999]; Bigda v Fischbach Corp., 849 F Supp 895 , 901 n 2 [SD NY 1994]).

2014Indeed the concurring comments of Justice O’Connor (part of the majority in Palazzolo which held that it had “no occasion to consider the precise circumstances when a legislative enactment can be deemed a background principle of state law” [ 533 US 606, 629 ]) — that “[t]oday’s holding does not mean that the timing of the regulation’s enactment relative to the acquisition of title is immaterial to the Penn Central analysis.

2014Conservation ( 3 AD3d 86 [2d Dept 2003]) for a discussion of the distinction between a claim of total deprivation of economic value resulting in a per se finding (Lucas) versus a claim that regulations severely impair a property’s value (Penn Central), which may or may not result in a finding that there was a taking, depending on a balancing of any and all factors claimed to be relevant. .

2007Auth., 924 F Supp 1323 [SD NY 1996].) Apparently applying this distinction between the standard in administrative termination proceedings and in statutory proceedings in this court, the Appellate Division, First Department, in Matter of Satterwhite v Hernandez ( 16 AD3d 131 [2005]), has applied the “strict liability” standard to a case in which NYCHA used its Escalera administrative procedure to terminate the lease for violation of the no drug activity clause, while the Appellate Term, First Department, has. continued to apply the “knew or should have known” standard to post-Rucker cases broug

2007Corp., 254 App Div 274, 281 [1938], affd 279 NY 638 [1938].) The concurring opinion in Kaste states this position in another way: “Where the insurance company, as here, assumes a single obligation to defend its assured, I see no reason to draw a distinction between defense prior to or on appeal, in the absence of language in the contract expressing such an intention.

2007Auth., 924 F Supp 1323 [SD NY 1996].) Apparently applying this distinction between the standard in administrative termination proceedings and in statutory proceedings in this court, the Appellate Division, First Department, in Matter of Satterwhite v Hernandez ( 16 AD3d 131 [2005]), has applied the “strict liability” standard to a case in which NYCHA used its Escalera administrative procedure to terminate the lease for violation of the no drug activity clause, while the Appellate Term, First Department, has. continued to apply the “knew or should have known” standard to post-Rucker cases broug

1998That section makes a distinction between a clause disclaiming warranties, which would normally "materially alter” the contract, and a clause limiting a party’s remedy in a reasonable manner, which may be considered part of the parties’ agreement (see, UCC 2-207, Comments 4, 5). “[A] disclaimer or exclusion of warranties delivered to the buyer after consummation of the sale is not effective unless the parties have entered into a separate agreement pursuant to Uniform Commercial Code § 2-209” (White & Son v Gosier, 219 AD2d 866, 867 ).

1996The United States Supreme Court, in United States v Bagley ( 473 US 667, 675 ), wrote: "The Court has recognized * * * that the prosecutor’s role transcends that of an adversary: he 'is the representative not of an ordinary party to a controversy, but of a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but the justice shall be done.’ ” In view of the ramifications, under New York State law, of the distinction between a violation and a misdemeanor, the town prosecutor’s oversight in the instant case is distinguishable from those misstatements of th

1996The United States Supreme Court, in United States v Bagley ( 473 US 667, 675 ), wrote: "The Court has recognized * * * that the prosecutor’s role transcends that of an adversary: he 'is the representative not of an ordinary party to a controversy, but of a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but the justice shall be done.’ ” In view of the ramifications, under New York State law, of the distinction between a violation and a misdemeanor, the town prosecutor’s oversight in the instant case is distinguishable from those misstatements of th

1996The United States Supreme Court, in United States v Bagley ( 473 US 667, 675 ), wrote: "The Court has recognized * * * that the prosecutor’s role transcends that of an adversary: he 'is the representative not of an ordinary party to a controversy, but of a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but the justice shall be done.’ ” In view of the ramifications, under New York State law, of the distinction between a violation and a misdemeanor, the town prosecutor’s oversight in the instant case is distinguishable from those misstatements of th

1992The Supreme Court has repeatedly admonished that " 'the constitutionality of statutes ought not be decided except in an actual factual setting that makes such a decision necessary.’ ” (Keystone Bituminous Coal Assn. v DeBenedictis, 480 US 470, 494 , quoting Hodel v Virginia Surface Min. & Reclamation Assn., 452 US 264, 294-295 .) A statute is presumed to be constitutional.

1985In so arguing, however, the People fail to perceive the distinction between the standard for admissibility and the question of the weight to be accorded to the testimony (cf. People v Yazum, 13 NY2d 302 ).

1982The ancient writ was intended to maintain its vitality by the revisers of the civil procedure acts including the CPLR (See Matter of Gimprich v Board of Educ., 306 NY 401, 406 ; Matter of Newbrand v City of Yonkers, 285 NY 164, 174-175 ; 8 Weinstein-Korn-Miller, NY Civ Prac, par 7801.04; NY Advisory Committee on Prac and Pro [2d prelim report], p 395; but see Matter of Brescia v Mugridge, 52 Misc 2d 859, 862, affd 29 AD2d 632 ; Matter of Barone v Adams, 39 Misc 2d 227, 232 , revd on other grounds 20 AD2d 790 .) Central to the distinction between a claim remediable in mandamus and one remediabl

1982The ancient writ was intended to maintain its vitality by the revisers of the civil procedure acts including the CPLR (See Matter of Gimprich v Board of Educ., 306 NY 401, 406 ; Matter of Newbrand v City of Yonkers, 285 NY 164, 174-175 ; 8 Weinstein-Korn-Miller, NY Civ Prac, par 7801.04; NY Advisory Committee on Prac and Pro [2d prelim report], p 395; but see Matter of Brescia v Mugridge, 52 Misc 2d 859, 862, affd 29 AD2d 632 ; Matter of Barone v Adams, 39 Misc 2d 227, 232 , revd on other grounds 20 AD2d 790 .) Central to the distinction between a claim remediable in mandamus and one remediabl

1982The ancient writ was intended to maintain its vitality by the revisers of the civil procedure acts including the CPLR (See Matter of Gimprich v Board of Educ., 306 NY 401, 406 ; Matter of Newbrand v City of Yonkers, 285 NY 164, 174-175 ; 8 Weinstein-Korn-Miller, NY Civ Prac, par 7801.04; NY Advisory Committee on Prac and Pro [2d prelim report], p 395; but see Matter of Brescia v Mugridge, 52 Misc 2d 859, 862, affd 29 AD2d 632 ; Matter of Barone v Adams, 39 Misc 2d 227, 232 , revd on other grounds 20 AD2d 790 .) Central to the distinction between a claim remediable in mandamus and one remediabl