ease bar in New York

1980Co., 1 NY2d 439 , which is indistinguishable from the ease at bar.) Damiani, J.

1975In People v Kirkpatrick ( 32 NY2d 17, 25 ), the court sustained a statutory presumption of a book seller’s knowledge of the contents of obscene books based on probabilities, but added: "One must look to the ease with which a presumption may be rebutted.

1974In the ease at bar, the examples given were not given in bad faith or as indicia of the predilections of the trial court towards the guilt or innocence of the defendant (cf. People v. Ohanian, 245 N. Y. 227 ).

1973In any event, the police were coneededly looking for that which they found contrary to the “plain-view” requirement spelled out in Coolidge (p. 469) and contrary to the circumstances in the seminal New York “plain view” case of People v. Swanberg (22 A D 2d 902, mod. and affd. 16 N Y 2d 649) and the seminal Federal case of Ker v. California ( 374 U. S. 23, 43 , supra). (5) In neither case did the police conduct an immediate search of the vehicle.

1973In the ease at bar the police had the defendant lead them to the truck by a means which could in no way be considered as voluntary since it was done under a false presumption as well as under “‘the shadow of the badge and threat of force’” (Harless v. Turner, 456 F. 2d 1337, 1339 , supra; see, also, Bumper v. North Carolina, 391 U. S. 543, 548 ; United States v. Smith, 308 F. 2d 657 ; Pekar v. United States, 315 F. 2d 319, 324 ; People v. Whitehurst, 25 N Y 2d 389).

1973In the ease at bar the police had the defendant lead them to the truck by a means which could in no way be considered as voluntary since it was done under a false presumption as well as under “‘the shadow of the badge and threat of force’” (Harless v. Turner, 456 F. 2d 1337, 1339 , supra; see, also, Bumper v. North Carolina, 391 U. S. 543, 548 ; United States v. Smith, 308 F. 2d 657 ; Pekar v. United States, 315 F. 2d 319, 324 ; People v. Whitehurst, 25 N Y 2d 389).

1973In the ease at bar the police had the defendant lead them to the truck by a means which could in no way be considered as voluntary since it was done under a false presumption as well as under “‘the shadow of the badge and threat of force’” (Harless v. Turner, 456 F. 2d 1337, 1339 , supra; see, also, Bumper v. North Carolina, 391 U. S. 543, 548 ; United States v. Smith, 308 F. 2d 657 ; Pekar v. United States, 315 F. 2d 319, 324 ; People v. Whitehurst, 25 N Y 2d 389).

1973In the ease at bar the police had the defendant lead them to the truck by a means which could in no way be considered as voluntary since it was done under a false presumption as well as under “‘the shadow of the badge and threat of force’” (Harless v. Turner, 456 F. 2d 1337, 1339 , supra; see, also, Bumper v. North Carolina, 391 U. S. 543, 548 ; United States v. Smith, 308 F. 2d 657 ; Pekar v. United States, 315 F. 2d 319, 324 ; People v. Whitehurst, 25 N Y 2d 389).

1973In the ease at bar the police had the defendant lead them to the truck by a means which could in no way be considered as voluntary since it was done under a false presumption as well as under “‘the shadow of the badge and threat of force’” (Harless v. Turner, 456 F. 2d 1337, 1339 , supra; see, also, Bumper v. North Carolina, 391 U. S. 543, 548 ; United States v. Smith, 308 F. 2d 657 ; Pekar v. United States, 315 F. 2d 319, 324 ; People v. Whitehurst, 25 N Y 2d 389).

1973In the ease at bar the police had the defendant lead them to the truck by a means which could in no way be considered as voluntary since it was done under a false presumption as well as under “‘the shadow of the badge and threat of force’” (Harless v. Turner, 456 F. 2d 1337, 1339 , supra; see, also, Bumper v. North Carolina, 391 U. S. 543, 548 ; United States v. Smith, 308 F. 2d 657 ; Pekar v. United States, 315 F. 2d 319, 324 ; People v. Whitehurst, 25 N Y 2d 389).

1973To shorten or alter the gun by sawing it, as was alleged to have been done with the weapon in the ease at bar, cannot under the clear language of the statute be included in the definition of “deface” (People v. Keating, 68 Misc 2d 811 ).

1973Furthermore, the Court of Appeals placed great reliance upon the decision in Matter of Callahan ( 200 N. Y. 59 ).

1973No. 28, Long Beach, 301 N. Y. 233 ; Gibbs v. City of New York, 23 A D 2d 665).

1972We recognize that the facts of this ease test the very outer limits of due process requirements (see Hanson v. Denckla, 357 U. S. 235 ; Longines-Wittnauer Watch Co. v. Barnes & Reinecke, 15 N Y 2d 443).

1972The release in the ease at bar was clearly marked at the top and the bottom in bold face type “ THIS IS A RELEASE ”, as was the case in Theroux v. Kedenburg Racing Assn. ( 50 Misc 2d 97 , affd. 28 A D 2d 960, mot. for lv. to app. den. 20 N Y 2d 648).

1972As a matter of fact the Court of Appeals stated ( 271 N. Y. 36, 42 , supra) that where ‘ ‘ the accident did not result from negligence on the part -of the defendant, the indemnitee ”, “ the defendant was entitled to enforce its indemnity agreement.” At the base of ABA’s citations appears to be the contention that ABA is not bound by the jury’s determination that BOAC was not negligent in the happening of this accident.

1972(In re Empire City Bank, 18 N. Y. 200 ; Happy v. Mosher, 48 N. Y. 313 * * *.) ’ ” Defendant in the ease at bar deliberately prevented plaintiff’s counsel from serving him at the time of the Friday telephone call.

1972This theory is all the more difficult to apply since all that is contemplated is that the excavation be "so close to the public thoroughfare that a traveler is injured by a slight and inadvertent deviation ” (Kelly v. Sabin Estates, 279 App. Div. 348, 349 ; Beck v. Carter, 68 N. Y. 283 ).

1972This theory is all the more difficult to apply since all that is contemplated is that the excavation be "so close to the public thoroughfare that a traveler is injured by a slight and inadvertent deviation ” (Kelly v. Sabin Estates, 279 App. Div. 348, 349 ; Beck v. Carter, 68 N. Y. 283 ).

1972(People v. Sorge, 301 N. Y. 198, 200 .) In the ease at bar the specificity of times, places, occurrences and arresting officers adequately sustain the good faith of the prosecutor.

1971(United States v. Harriss, 347 U. S. 612, 617 .) In the ease at bar the court found that the defendant possessed slips which were records of lay off bets on baseball games.

1970Co. v. Flaumenbaum, 62 Misc 2d 32, 49 , supra.

1969(People v. Miles, 23 N Y 2d 527, 542-543 [1969]; United, States v. Fox, 403 F. 2d 97 ; Groshart v. United States, 392 F. 2d 172 ; People v. Schwartz, 30 A D 2d 385 [2d Dept. 1968].) In Schwartz, as in the ease at bar, defendant was cross-examined about matters not covered in his direct testimony; he was asked about his post-arrest statements which, though exculpatory in nature, contradicted an earlier statement made by him and testified to by the police officer.

1969With respect to (1), the law of the ease doctrine does not apply because plaintiffs Fleury were not parties to the previous motions and orders changing venue of Actions Nos. 1 and 2, and because a material change of circumstances (commencement of Actions Nos. 3 and 4 involving the same accident in Franklin County) has occurred since the original orders (Bivins v. Bivins, 10 A D 2d 739, 740; McKeeby v. Baer, 260 App. Div. 826 ; and see 1 Carmody-Wait 2d, New York Practice, § 2:68).

1969Such tactics by the prosecution were clearly condemned in People v. Zackowitz ( 254 N. Y. 192, 197 ); People v. Kress ( 284 N. Y. 452, 466 ); People v. Russell ( 266 N. Y. 147, 151-152 ); People v. Rosenthal ( 289 N. Y. 482, 487 ); People v. Farricchia ( 266 App. Div. 667 ).

1969Such tactics by the prosecution were clearly condemned in People v. Zackowitz ( 254 N. Y. 192, 197 ); People v. Kress ( 284 N. Y. 452, 466 ); People v. Russell ( 266 N. Y. 147, 151-152 ); People v. Rosenthal ( 289 N. Y. 482, 487 ); People v. Farricchia ( 266 App. Div. 667 ).

1969(See Matter of Otterbein v. Barbor & Comeau Co., 272 N. Y. 149 .) In the ease at bar there was no premium financing agreement and therefore the controlling statute at the time of the accident was section 93-c of the Vehicle and Traffic Law (now § 313) which provides that no contract of insurance shall be terminated where the cancellation is for nonpayment of the premium unless 10 days’ notice of cancellation is given to the insured.

1969Appellant made no showing of reasonable need for Owens’ testimony (cf. United States v. Gleason, 259 F. Supp. 282 ) and she did not move for a severance in advance of trial, although she then knew or should have known of her intention to call Owens as a witness.

1969The majority in Schwartzman, citing People v. Molineux ( 168 N. Y. 264 ), stated that “ evidence of other crimes has long been admissible to establish the motive or intention of a defendant” and “where intention to defraud is an essential element of the crime charged, such as here, evidence competent to establish criminal intention is not a collateral matter with respect to cross-examination ”, How completely different is the ease at bar where the prior assault conviction had no similarity whatsoever to the robbery charge and the interrogation sought only to demonstrate defendant’s propensity

1969Such tactics by the prosecution were clearly condemned in People v. Zackowitz ( 254 N. Y. 192, 197 ); People v. Kress ( 284 N. Y. 452, 466 ); People v. Russell ( 266 N. Y. 147, 151-152 ); People v. Rosenthal ( 289 N. Y. 482, 487 ); People v. Farricchia ( 266 App. Div. 667 ).

1969Such tactics by the prosecution were clearly condemned in People v. Zackowitz ( 254 N. Y. 192, 197 ); People v. Kress ( 284 N. Y. 452, 466 ); People v. Russell ( 266 N. Y. 147, 151-152 ); People v. Rosenthal ( 289 N. Y. 482, 487 ); People v. Farricchia ( 266 App. Div. 667 ).