witness hearing in New York

2021Finally, we find that the Hearing Officer's denial of petitioner's request to call his assistant as a witness was not error, as the proposed testimony would have been irrelevant to the charge of smuggling ( see Matter of White v Fischer , 108 AD3d 891, 892 [2013], lv denied 22 NY3d 853 [2013]; Matter of Mobayed v Fischer , 89 AD3d 1266, 1267 [2011]).

2013Turning to petitioner’s procedural contentions, we find that the Hearing Officer’s denial of petitioner’s request to call his assistant as a witness was not error, as the proposed testimony would have been irrelevant to the charge (see Matter of Mobayed v Fischer, 89 AD3d 1266, 1267 [2011]; Matter of Canty v Esgrow, 83 AD3d 1322, 1322 [2011], lv denied 17 NY3d 705 [2011], cert denied 565 US —, 132 S Ct 1020 [2012]).

2016Contrary to defendant’s further contention, the court properly concluded that it was not required to entertain his pro se motion to dismiss the indictment because at the time defendant made the motion he was represented by counsel (see People v Rodriguez, 95 NY2d 497, 501-502 [2000]) and, in any event, there is no indication in the record that the motion was properly filed in accordance with the requirements of CPL 255.20 (1).

2016Contrary to defendant’s further contention, the court properly concluded that it was not required to entertain his pro se motion to dismiss the indictment because at the time defendant made the motion he was represented by counsel (see People v Rodriguez, 95 NY2d 497, 501-502 [2000]) and, in any event, there is no indication in the record that the motion was properly filed in accordance with the requirements of CPL 255.20 (1).

2013Contrary to petitioner’s further contention, even assuming, arguendo, that there was a violation of 7 NYCRR 251-4.2 based on the failure of petitioner’s employee assistant to obtain requested evidence and to interview a certain witness, we conclude that the Hearing Officer remedied any alleged defect in the prehearing assistance by obtaining a copy of the evidence and taking the testimony of the witness at the hearing (see Matter of Melendez v Berbary, 89 AD3d 1524, 1525 [2011], lv denied 19 NY3d 804 [2012]; Gray, 59 AD3d at 1092-1093 ).

2013Contrary to petitioner’s further contention, even assuming, arguendo, that there was a violation of 7 NYCRR 251-4.2 based on the failure of petitioner’s employee assistant to obtain requested evidence and to interview a certain witness, we conclude that the Hearing Officer remedied any alleged defect in the prehearing assistance by obtaining a copy of the evidence and taking the testimony of the witness at the hearing (see Matter of Melendez v Berbary, 89 AD3d 1524, 1525 [2011], lv denied 19 NY3d 804 [2012]; Gray, 59 AD3d at 1092-1093 ).

2012With respect to his remaining contentions on the issue of recusal, defendant “ ‘failed to allege any basis for mandatory disqualification or recusal [pursuant to Judiciary Law § 14], and we conclude that the court did not abuse its discretion in refusing to recuse itself ” (Caplash v Rochester Oral & Maxillofacial Surgery Assoc., LLC, 63 AD3d 1683, 1686 [2009]).

2012With respect to his remaining contentions on the issue of recusal, defendant “ ‘failed to allege any basis for mandatory disqualification or recusal [pursuant to Judiciary Law § 14], and we conclude that the court did not abuse its discretion in refusing to recuse itself ” (Caplash v Rochester Oral & Maxillofacial Surgery Assoc., LLC, 63 AD3d 1683, 1686 [2009]).

2012We note at the outset that defendant’s contention that the court should have recused itself because it allegedly filed an attorney disciplinary grievance against Dys, a witness for the defense, is unpreserved for our review (see Matter of Rath v Melens, 15 AD3d 837, 837 [2005]; Matter of Nunnery v Nunnery, 275 AD2d 986, 987 [2000]).

2012We note at the outset that defendant’s contention that the court should have recused itself because it allegedly filed an attorney disciplinary grievance against Dys, a witness for the defense, is unpreserved for our review (see Matter of Rath v Melens, 15 AD3d 837, 837 [2005]; Matter of Nunnery v Nunnery, 275 AD2d 986, 987 [2000]).

2012We note at the outset that defendant’s contention that the court should have recused itself because it allegedly filed an attorney disciplinary grievance against Dys, a witness for the defense, is unpreserved for our review (see Matter of Rath v Melens, 15 AD3d 837, 837 [2005]; Matter of Nunnery v Nunnery, 275 AD2d 986, 987 [2000]).

2012We note at the outset that defendant’s contention that the court should have recused itself because it allegedly filed an attorney disciplinary grievance against Dys, a witness for the defense, is unpreserved for our review (see Matter of Rath v Melens, 15 AD3d 837, 837 [2005]; Matter of Nunnery v Nunnery, 275 AD2d 986, 987 [2000]).

1976This contention, it is claimed, finds support in dictum contained in the following passage from People v Ianniello ( 36 NY2d 137, 145 ) in which the court, in the process of holding that the element of "legality” presented a question of law for the Trial Judge, stated "In People v Ianniello (21 N Y 2d 418, cert. den. 393 U.S. 827 , supra), 'proper’ questions were described as those pertinent and relevant to the scope of the Grand Jury’s investigation (p. 426). 'Legal’ questions are those which are 'proper’, and which do not contravene any testimonial privilege of the witness or his privilege a

1975In People v. Ianniello (21 N Y 2d 418, cert. den. 393 U. S. .827, supra), " proper ” questions were described as those pertinent and relevant to the scope of the Grand Jury’s investigation (p. 426). “ Legal ” questions are those which are “ proper ”, and which do not contravene any testimonial privilege of the witness or his privilege against self incrimination (see pp. 424-425; see, also, Matter of Barnes, 204 N. Y. 108, 125 ; People v. McAdoo, 45 Misc. 2d 664, 667 , affd. 51 Misc 2d 263 , cert. den. 386 U. S. 1031 , supra). “ Legal ” could also refer to questions concededly not based upon ta

2022We reject that contention. "[W]here a judge or justice replaces another judge or justice in the midst of litigation," the primary question is " 'whether the replacement judge [or justice] will be asked to make factual determinations, as opposed to reaching legal conclusions, and overall fairness' " ( People v Massey , 173 AD3d 1801 , 1804 [4th Dept 2019], quoting People v Hampton , 21 NY3d 277, 285 [2013]).

2022We reject that contention. "[W]here a judge or justice replaces another judge or justice in the midst of litigation," the primary question is " 'whether the replacement judge [or justice] will be asked to make factual determinations, as opposed to reaching legal conclusions, and overall fairness' " ( People v Massey , 173 AD3d 1801 , 1804 [4th Dept 2019], quoting People v Hampton , 21 NY3d 277, 285 [2013]).

2021Petitioner thus failed to exhaust his administrative remedies with respect to that contention ( see Matter of Ballard v Kickbush , 165 AD3d 1587 , 1589 [4th Dept 2018], appeal dismissed 32 NY3d 1182 [2019]), and this Court " 'has no discretionary power to reach [it]' " ( Matter of Jones v Annucci , 141 AD3d 1108, 1109 [4th Dept 2016]; see Matter of Ross-Simmons v Fischer , 115 AD3d 1234, 1234 [4th Dept 2014]).

2019Petitioner thus failed to exhaust his administrative remedies with respect to that contention ( see Matter of Ballard v Kickbush , 165 AD3d 1587 , 1589 [4th Dept 2018], appeal dismissed — NY3d — [Feb. 14, 2019]), and this Court " has no discretionary power to reach [it]' " ( Matter of Jones v Annucci , 141 AD3d 1108, 1109 [4th Dept 2016]; see Matter of Ross-Simmons v Fischer , 115 AD3d 1234 , 1234 [4th Dept 2014]).

2021Petitioner thus failed to exhaust his administrative remedies with respect to that contention ( see Matter of Ballard v Kickbush , 165 AD3d 1587 , 1589 [4th Dept 2018], appeal dismissed 32 NY3d 1182 [2019]), and this Court " 'has no discretionary power to reach [it]' " ( Matter of Jones v Annucci , 141 AD3d 1108, 1109 [4th Dept 2016]; see Matter of Ross-Simmons v Fischer , 115 AD3d 1234, 1234 [4th Dept 2014]).

2019Petitioner thus failed to exhaust his administrative remedies with respect to that contention ( see Matter of Ballard v Kickbush , 165 AD3d 1587 , 1589 [4th Dept 2018], appeal dismissed — NY3d — [Feb. 14, 2019]), and this Court " has no discretionary power to reach [it]' " ( Matter of Jones v Annucci , 141 AD3d 1108, 1109 [4th Dept 2016]; see Matter of Ross-Simmons v Fischer , 115 AD3d 1234 , 1234 [4th Dept 2014]).

2019Although petitioner requested testimony from a food service administrator to corroborate his contention that he had been harassed by another correction officer not involved in the incident, this witness neither observed nor had firsthand knowledge of the incident, and the witness's testimony would have therefore been irrelevant to the harassment charge against petitioner ( see Matter of Bradshaw v Annucci , 163 AD3d 1380 , 1381 [2018]; Matter of Mena v Bedard , 117 AD3d 1275, 1275 [2014]).

2019Although petitioner requested testimony from a porter to corroborate his contention that he followed orders to stop fighting, this witness neither observed nor had firsthand knowledge of the incident, and the witness's testimony would have therefore been irrelevant to the charges against petitioner ( see Matter of Bradshaw v Annucci , 163 AD3d 1380 , 1381 [2018]; Matter of Medina v Rodriguez , 155 AD3d 1200, 1200-1201 [2017]; Matter of Mena v Bedard , 117 AD3d 1275, 1275 [2014]).

2019Contrary to defendant's contention, we conclude that the evidence is legally sufficient to support the conviction with respect to the charges of intimidating a victim or witness in the third degree, aggravated harassment in the second degree, and attempted assault in the third degree ( see generally People v Bleakley , 69 NY2d 490, 495 [1987]).

2005Addressing the sufficiency of the evidence, we find a “valid line of reasoning and permissible inferences” (People v Bleakley, 69 NY2d 490, 495 [1987]) which rationally led Supreme Court, as the factfinder, to the conclusion that defendants intentionally undertook to obtain additional reimbursement for the costs of physical, occupational and speech therapy services, as well as dental services, by falsely certifying to New York that these costs were not included in the home state rate. 3 Several witnesses, including a witness for the defense, testified that the applicable Pennsylvania regulatio

2018Moreover, while impeachment by prior bad acts may, "under the usual rules of evidence," be circumscribed so as to protect a witness and a party from undue development of testimonial matters relative to their probative worth, it is also the case that "when the defendant or a witness for the defense testifies to facts that are in conflict with the precluded evidence[,] . . . the defense opens the door on the issue in question, and the witness is properly subject to impeachment by the prosecution's use of the otherwise precluded evidence" ( People v Fardan , 82 NY2d 638, 646 [1993] [internal quot

2018Moreover, while impeachment by prior bad acts may, "under the usual rules of evidence," be circumscribed so as to protect a witness and a party from undue development of testimonial matters relative to their probative worth, it is also the case that "when the defendant or a witness for the defense testifies to facts that are in conflict with the precluded evidence[,] . . . the defense opens the door on the issue in question, and the witness is properly subject to impeachment by the prosecution's use of the otherwise precluded evidence" ( People v Fardan , 82 NY2d 638, 646 [1993] [internal quot

2017The cross-examination that the father’s attorney was attempting to pursue “was properly excluded as ‘too remote and speculative’ ” (Matter of Michael U. [Marcus U.], 110 AD3d 821 , 822; see Matter of Mi-Kell V., 226 AD2d 810, 810-811 ; see also People v Poole, 55 AD3d 1349, 1350 , lv denied 11 NY3d 929 ).

2017The cross-examination that the father’s attorney was attempting to pursue “was properly excluded as ‘too remote and speculative’ ” (Matter of Michael U. *1649 [Marcus U.], 110 AD3d 821 , 822 [2013]; see Matter of Mi-Kell V., 226 AD2d 810, 810-811 [1996]; see also People v Poole, 55 AD3d 1349 , 1350 [2008], lv denied 11 NY3d 929 [2009]).

2017The cross-examination that the father’s attorney was attempting to pursue “was properly excluded as ‘too remote and speculative’ ” (Matter of Michael U. [Marcus U.], 110 AD3d 821 , 822; see Matter of Mi-Kell V., 226 AD2d 810, 810-811 ; see also People v Poole, 55 AD3d 1349, 1350 , lv denied 11 NY3d 929 ).

2017The cross-examination that the father’s attorney was attempting to pursue “was properly excluded as ‘too remote and speculative’ ” (Matter of Michael U. *1649 [Marcus U.], 110 AD3d 821 , 822 [2013]; see Matter of Mi-Kell V., 226 AD2d 810, 810-811 [1996]; see also People v Poole, 55 AD3d 1349 , 1350 [2008], lv denied 11 NY3d 929 [2009]).

2017The cross-examination that the father’s attorney was attempting to pursue “was properly excluded as ‘too remote and speculative’ ” (Matter of Michael U. [Marcus U.], 110 AD3d 821 , 822; see Matter of Mi-Kell V., 226 AD2d 810, 810-811 ; see also People v Poole, 55 AD3d 1349, 1350 , lv denied 11 NY3d 929 ).

2017The cross-examination that the father’s attorney was attempting to pursue “was properly excluded as ‘too remote and speculative’ ” (Matter of Michael U. *1649 [Marcus U.], 110 AD3d 821 , 822 [2013]; see Matter of Mi-Kell V., 226 AD2d 810, 810-811 [1996]; see also People v Poole, 55 AD3d 1349 , 1350 [2008], lv denied 11 NY3d 929 [2009]).

2016Nevertheless, even if she had been unavailable, the fact that the defendant may have been the only witness for the defense “increased the importance of his credibility and his testimony, and did not mandate a ruling prohibiting inquiry” into his prior robbery conviction (People v Garcia, 45 AD3d 860, 861 [2007]; see People v Hayes, 97 NY2d at 208 ; People v Edwards, 118 AD3d 909, 909 [2014]).

2006The fact that the defendant was the only witness for the defense increased the importance of his credibility and his testimony, and did not mandate a ruling prohibiting inquiry into the 1988 convictions (see People v Hayes, 97 NY2d 203, 208 [2002]; People v Cruz, 21 AD3d 967 [2005]).

2020The error in precluding the defendant from having the DAT form admitted and seeking the admission of the ECAB sheet and the testimony of the witness whom the defense sought to call to lay the foundation for admission of the ECAB sheet, which if admitted would provide additional evidence of the need for an intoxication charge as well as evidence that could have been used to impeach the arresting officer, cannot be deemed harmless ( see People v Mullings , 83 AD3d at 872 ; People v Steward , 54 AD3d at 882 ; see generally People v Crimmins , 36 NY2d 230, 241 ).

2000Further, in my view, the record is adequate to demonstrate that Supreme Court recognized the substantive matter of the witness’s expected testimony, the importance of the witness to the defense of the charges and the drastic nature of precluding this witness, who presumptively was the only one who could testify to being with the victim during the time that the victim claimed the crime was committed. 1 In my view, the testimony of such a witness impinges directly on the issue of guilt or innocence; prohibiting such a witness from testifying because of a violation of a preclusion from the courtr