absence of an express waiver in New York

1982The absence of an express waiver by the defendant of his right to counsel and his right to remain silient prior to custodial interrogation is not necessarily conclusive, and such waiver may be established by implication from “the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver” (see North Carolina v Butler, 441 US 369, 373 ; cf. People v Schroder, 71 AD2d 907 ).

1981The absence of an express waiver of the right to counsel is not necessarily determinative (cf. North Carolina v Butler, 441 US 369 ; People v Schroder, 71 AD2d 907 ).

1989We recognize that a criminal suspect may be found to have effectively waived his Miranda rights, even in the absence of an express waiver (North Carolina v Butler, 441 US 369 ).

1982The absence of an express waiver by the defendant of his right to counsel and his right to remain silient prior to custodial interrogation is not necessarily conclusive, and such waiver may be established by implication from “the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver” (see North Carolina v Butler, 441 US 369, 373 ; cf. People v Schroder, 71 AD2d 907 ).

2002Again, the reason for this is the uniformly recognized preference for early vesting and indefeasibility (see, e.g., Matter of Bogart, 62 Misc 2d 114, 119 , supra; Matter of Vought, 57 Misc 2d 396 , affd 30 AD2d 805 ; 13 Warren’s Heaton, Surrogates’ Courts § 201.01 [5] [b]).

1982In such instance it has been held that the presumption against requiring his survival of preceding measuring lives is “so strong as to be almost irrebuttable in the absence of an express requirement of survival.” (See excellent discussion by Surrogate Sobel in Matter of Bogart, 62 Misc 2d 114, 119 , supra.) A sympathetic reading of the will discloses additional support for the determination reached.

1982A determination as to such inferred waiver may be made from an examination of the totality of the surrounding circumstances (Fare v Michael C., 442 US 707 ; People v Baez, 79 AD2d 608 ; People v Rooney, 82 AD2d 840 ).

1980(See, e.g., People v Kaye, 25 NY2d 139 .) As to the later admission relating to the sale itself, the question of whether the defendant had first waived his constitutional rights must be determined upon an examination of the totality of the circumstances (see Fare v Michael C., 442 US 707 ), and the absence of an express waiver of the right to counsel is not necessarily determinative.

1956Co. ( 159 N. Y. 418, 426-427 ) it was said that “ in the absence of an express waiver, at least, some of the elements of an estoppel must exist.

1905Co., 159 N. Y. 418 : “ In the absence of an express waiver, at least some of the elements of an estoppel must exist.” When the insurer does nothing more than to make an offer, which is instantly rejected, even though the offer and rejection be repeated, there is nothing in that circumstance to mislead the insured or to justify him in believing that, if he persists in refusing the offer made him, the company will waive any defense it may have to his claim to a larger payment.

1899Co. ( 130 N. Y. 560 ) that, while a waiver of a condition of forfeiture contained in a policy of insurance need not be based upon a technical estoppel, yet, in the absence of an express waiver, some of the elements of an estoppel must exist, and that the insured must have been misled by some action of the company or it must have done something after knowledge of a breach of the condition, which could only be done by virtue of the policy or have required something from the assured which he was bound to do only at the request of the company under a valid policy, or have exercised a right which i

1894Armstrong v. Insurance Co., 130 N. Y. 560 , 29 N. E. 991 ; Ronald v. Association, 132 N. Y. 378 , 30 N. E. 739 .

2009A finding of civil contempt requires the violation of a clear and unequivocal mandate set forth in an order or judgement of the court (see Matter of Jules v Corriette, 55 AD3d 732 [2008]; Incorporated Vil. of Piandome Manor v Ioannou, 54 AD3d 365, 366 [2008]; Automated Waste Disposal, Inc. v Mid-Hudson Waste, Inc., 50 AD3d 1073, 1074 [2008]).

2008In the absence of an express violation of Judiciary Law § 14, the decision on a recusal motion based upon alleged bias and prejudice, as in this case, is generally a matter for the court’s personal conscience (see Judiciary Law § 14; People v Moreno, 70 NY2d 403, 405-406 [1987]; EECP Ctrs. of Am. v Vasomedical, Inc., 277 AD2d 349 , 350 [2000]).

2002Again, the reason for this is the uniformly recognized preference for early vesting and indefeasibility (see, e.g., Matter of Bogart, 62 Misc 2d 114, 119 , supra; Matter of Vought, 57 Misc 2d 396 , affd 30 AD2d 805 ; 13 Warren’s Heaton, Surrogates’ Courts § 201.01 [5] [b]).

2002Again, the reason for this is the uniformly recognized preference for early vesting and indefeasibility (see, e.g., Matter of Bogart, 62 Misc 2d 114, 119 , supra; Matter of Vought, 57 Misc 2d 396 , affd 30 AD2d 805 ; 13 Warren’s Heaton, Surrogates’ Courts § 201.01 [5] [b]).

2000Corp:, 247 AD2d 271 , cert denied 525 US 1178 ; Anjam v An-jam, 191 AD2d 531 ; cf, Ortiz v City of New York, 136 Misc 2d 500 ).

2000Corp:, 247 AD2d 271 , cert denied 525 US 1178 ; Anjam v An-jam, 191 AD2d 531 ; cf, Ortiz v City of New York, 136 Misc 2d 500 ).

2000Corp:, 247 AD2d 271 , cert denied 525 US 1178 ; Anjam v An-jam, 191 AD2d 531 ; cf, Ortiz v City of New York, 136 Misc 2d 500 ).

2000Corp:, 247 AD2d 271 , cert denied 525 US 1178 ; Anjam v An-jam, 191 AD2d 531 ; cf, Ortiz v City of New York, 136 Misc 2d 500 ).

1995In the absence of an express waiver, a litigant waives the privilege by affirmatively placing his or her physical or mental condition in issue (Koump v Smith, 25 NY2d 287, 294 ).

1992The absence of an express bar to resubmission after the expiration of the 30-day period manifests the Legislature’s intention to permit resubmission beyond the 30-day period (see, People v Nuccio, 78 NY2d 102 [1991]).

1989However, such a waiver may not be found where, as in the present case, the record is utterly silent not only with respect to whether the defendant expressly waived his rights, but also with respect to whether he understood, or had even heard them (see generally, People v Moore, 96 AD2d 1044 ; People v Campbell, 81 AD2d 300 ; People v Schroder, 71 AD2d 907 ).

1989However, such a waiver may not be found where, as in the present case, the record is utterly silent not only with respect to whether the defendant expressly waived his rights, but also with respect to whether he understood, or had even heard them (see generally, People v Moore, 96 AD2d 1044 ; People v Campbell, 81 AD2d 300 ; People v Schroder, 71 AD2d 907 ).