impossibility test in New York

2024In applying the impossibility test, the Court determined that the state law did not require the carrier to manufacture, distribute, or possess marijuana and that the carrier was merely required to reimburse a claimant for the monetary costs associated with the medical marijuana, which is not expressly prohibited under the CSA ( see Matter of Quigley , 193 AD3d at 211 ).

2024The Court further found that the challenged conduct did not create an obstacle to federal enforcement of the CSA, holding that "requiring the carrier to reimburse claimant for said expenses does not serve to subvert, in any way, the principal purposes of the [CSA] in combating drug abuse and controlling 'the legitimate and illegitimate traffic in controlled substances' " ( id. [citation omitted]).

2021Since the lesser crime requires demonstration of an element or fact not required by the greater, the impossibility test has not been met, and it is not a lesser included offense of the greater ( see People v Leon , 7 NY3d 109, 112 ; People v Okafore , 72 NY2d 81 , 89 n 3; People v Totten , 161 AD2d 678 ).

2021Since the lesser crime requires demonstration of an element or fact not required by the greater, the impossibility test has not been met, and it is not a lesser included offense of the greater ( see People v Leon , 7 NY3d 109, 112 ; People v Okafore , 72 NY2d 81 , 89 n 3; People v Totten , 161 AD2d 678 ).

2021Since the lesser crime requires demonstration of an element or fact not required by the greater, the impossibility test has not been met, and it is not a lesser included offense of the greater ( see People v Leon , 7 NY3d 109, 112 ; People v Okafore , 72 NY2d 81 , 89 n 3; People v Totten , 161 AD2d 678 ).

2018We reject defendant's arguments concerning the sufficiency and weight of the evidence supporting his attempted possession of a controlled substance conviction ( see People v Danielson , 9 NY3d 342 , 348—349 [2007]).

2008But whether another exception to the statutory definition of the term “lesser included offense” should be recognized on account of the agency defense, which itself is of judicial origin (see People v Roche, 45 NY2d 78 , 82-83 n 1 [1978], cert denied 439 US 958 [1978]), is a matter best left to the Court of Appeals.

2008But whether another exception to the statutory definition of the term “lesser included offense” should be recognized on account of the agency defense, which itself is of judicial origin (see People v Roche, 45 NY2d 78 , 82-83 n 1 [1978], cert denied 439 US 958 [1978]), is a matter best left to the Court of Appeals.

1996Nor did the IAS Court err in determining that plaintiffs were not entitled to the striking of defendant’s third affirmative defense, alleging impossibility of performance, or the remaining affirmative defenses, since conflicting affidavits of the parties raise triable issues of fact as to whether defendant Evergreen was excused from performing under the agreement by the doctrine of impossibility, because of the asserted unforeseeability of the FCC actions (see, Kel Kim Corp. v Central Mkts., 70 NY2d 900, 902 ; City of New York v Local 333, 79 AD2d 410 , affd 55 NY2d 898 ).

1996(Kovarsky v Brooklyn Union Gas Co., 279 NY 304 [1938].) The causes of action asserted herein are timely, as the four-month Statute of Limitations (CPLR 217) to review the PSC determination is inapplicable.

1996Co. v Horn, 49 Misc 2d 717 [Sup Ct, Suffolk County 1964], revd and remanded 23 AD2d 583 [2d Dept 1965], after remand affd 24 AD2d 840 [2d Dept 1965], affd on original opn at Special Term 17 NY2d 652 [1965]; 2 NY Jur 2d, Administrative Law, §§ 181, 182.) Questions of law concerning the doctrine of impossibility and Statutes of Limitations are beyond the powers granted to the PSC.

1996Co. v Horn, 49 Misc 2d 717 [Sup Ct, Suffolk County 1964], revd and remanded 23 AD2d 583 [2d Dept 1965], after remand affd 24 AD2d 840 [2d Dept 1965], affd on original opn at Special Term 17 NY2d 652 [1965]; 2 NY Jur 2d, Administrative Law, §§ 181, 182.) Questions of law concerning the doctrine of impossibility and Statutes of Limitations are beyond the powers granted to the PSC.

1996Nor did the IAS Court err in determining that plaintiffs were not entitled to the striking of defendant’s third affirmative defense, alleging impossibility of performance, or the remaining affirmative defenses, since conflicting affidavits of the parties raise triable issues of fact as to whether defendant Evergreen was excused from performing under the agreement by the doctrine of impossibility, because of the asserted unforeseeability of the FCC actions (see, Kel Kim Corp. v Central Mkts., 70 NY2d 900, 902 ; City of New York v Local 333, 79 AD2d 410 , affd 55 NY2d 898 ).

1996Co. v Horn, 49 Misc 2d 717 [Sup Ct, Suffolk County 1964], revd and remanded 23 AD2d 583 [2d Dept 1965], after remand affd 24 AD2d 840 [2d Dept 1965], affd on original opn at Special Term 17 NY2d 652 [1965]; 2 NY Jur 2d, Administrative Law, §§ 181, 182.) Questions of law concerning the doctrine of impossibility and Statutes of Limitations are beyond the powers granted to the PSC.

1995Although there exists a reasonable view of the evidence which would warrant a finding that the defendant committed the lesser offense of grand larceny in the fourth degree but not the greater offense of robbery in the first degree (see, People v Henderson, 41 NY2d 233 , 236), the trial court, when dealing with noninclusory concurrent counts, is not required to submit both counts to the jury (see, People v Williams, 47 AD2d 262, 265 ).

1991"If the lesser crime requires demonstration of an element or fact not required by the greater, the impossibility test has not been met” (People v Green, 56 NY2d 427, 431 ; People v Perkins, 175 AD2d 615 ; People v Freeman, 117 AD2d 677 ; People v Harris, 92 AD2d 738 ).

1991"If the lesser crime requires demonstration of an element or fact not required by the greater, the impossibility test has not been met” (People v Green, 56 NY2d 427, 431 ; People v Perkins, 175 AD2d 615 ; People v Freeman, 117 AD2d 677 ; People v Harris, 92 AD2d 738 ).

1991Further, " 'in all circumstances, not only in those presented in the particular case, it [must be] impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense’ ” (People v Tobey, supra, at 440 , quoting from People v Glover, supra, at 63 ).

1991"If the lesser crime requires demonstration of an element or fact not required by the greater, the impossibility test has not been met” (People v Green, 56 NY2d 427, 431 ; People v Perkins, 175 AD2d 615 ; People v Freeman, 117 AD2d 677 ; People v Harris, 92 AD2d 738 ).