arguable defense in New York

2000Significantly, “[prohibition is generally not available to collaterally review an arguable error of law committed in a pending criminal action” (Matter of Jacobs v Altman, 69 NY2d 733, 735 ).

1996In addition, the ordeal of a criminal trial with the possibility of conviction, standing alone, is not sufficiently harmful to warrant the use of prohibition even if the harm sought to be redressed implicates a constitutional right (see, Matter of Lipari v Owens, 70 NY2d 731, 733 ; Matter of Rush v Mordue, 68 NY2d 348, 354 ), nor is this remedy generally available to collaterally review an arguable error of law committed in a pending criminal action (see, Matter of Jacobs v Altman, 69 NY2d 733, 735 ).

1926As was said in Hanna v. Mitchell ( 202 App. Div. 504 ; affd., 235 N. Y. 534 ), in referring to the effect of rule 113 of the Rules of Civil Practice: “ It is not the object of this rule to deprive any one who has a right to a jury trial of an issue of fact, but to require a defendant, when it is claimed that in fact he has no honest defense and no bona fide issue, to show that he has at least an arguable defense, that he has not merely taken advantage of a technicality in the form of pleading for the purpose of delaying the enforcement of an honest claim to which in fact he has no colorable de

1925The court does not try the issues but ascertains whether in fact there is an issue.” (Hanna v. Mitchell, 202 App. Div. 504, 517 .) The order granting the motion for summary judgment, and the judgment entered thereon, should be affirmed, with costs.

2021Given the foregoing, in determining the defendant's presentence motion to withdraw his plea ( see CPL 220.60[3]), the Supreme Court was required to "either grant [the] application to allow the plea to be withdrawn; or conduct a hearing to determine whether the application has merit" ( People v McKennion , 27 NY2d at 673 ; see People v Tinsley , 35 NY2d at 927-928 ; People v McClain , 32 NY2d at 697-698 ; People v Nixon , 21 NY2d at 355 ; see also People v Shipman , 14 NY2d at 883 ; People v De Jesus , 199 AD2d at 530 ; People v Leslie , 98 AD2d 977 ; People v Arcuri , 64 AD2d at 1028-1029 ; Pe

2021It is clear that "an arguable claim [*4]of innocence" ( People v East , 39 AD2d at 606 ) may alone provide a basis for granting a presentence motion to withdraw a plea, even where the evidence of innocence is "far from conclusive" ( People v De Jesus , 199 AD2d at 530 ; see People v Shipman , 14 NY2d 883, 883 ; People v Leslie , 98 AD2d 977 ; People v Arcuri , 64 AD2d at 1028-1029 ; People v McIntyre , 40 AD2d 1038 ).

2021Given the foregoing, in determining the defendant's presentence motion to withdraw his plea ( see CPL 220.60[3]), the Supreme Court was required to "either grant [the] application to allow the plea to be withdrawn; or conduct a hearing to determine whether the application has merit" ( People v McKennion , 27 NY2d at 673 ; see People v Tinsley , 35 NY2d at 927-928 ; People v McClain , 32 NY2d at 697-698 ; People v Nixon , 21 NY2d at 355 ; see also People v Shipman , 14 NY2d at 883 ; People v De Jesus , 199 AD2d at 530 ; People v Leslie , 98 AD2d 977 ; People v Arcuri , 64 AD2d at 1028-1029 ; Pe

2021It is clear that "an arguable claim [*4]of innocence" ( People v East , 39 AD2d at 606 ) may alone provide a basis for granting a presentence motion to withdraw a plea, even where the evidence of innocence is "far from conclusive" ( People v De Jesus , 199 AD2d at 530 ; see People v Shipman , 14 NY2d 883, 883 ; People v Leslie , 98 AD2d 977 ; People v Arcuri , 64 AD2d at 1028-1029 ; People v McIntyre , 40 AD2d 1038 ).

2021Given the foregoing, in determining the defendant's presentence motion to withdraw his plea ( see CPL 220.60[3]), the Supreme Court was required to "either grant [the] application to allow the plea to be withdrawn; or conduct a hearing to determine whether the application has merit" ( People v McKennion , 27 NY2d at 673 ; see People v Tinsley , 35 NY2d at 927-928 ; People v McClain , 32 NY2d at 697-698 ; People v Nixon , 21 NY2d at 355 ; see also People v Shipman , 14 NY2d at 883 ; People v De Jesus , 199 AD2d at 530 ; People v Leslie , 98 AD2d 977 ; People v Arcuri , 64 AD2d at 1028-1029 ; Pe

2021It is clear that "an arguable claim [*4]of innocence" ( People v East , 39 AD2d at 606 ) may alone provide a basis for granting a presentence motion to withdraw a plea, even where the evidence of innocence is "far from conclusive" ( People v De Jesus , 199 AD2d at 530 ; see People v Shipman , 14 NY2d 883, 883 ; People v Leslie , 98 AD2d 977 ; People v Arcuri , 64 AD2d at 1028-1029 ; People v McIntyre , 40 AD2d 1038 ).

2021It is clear that "an arguable claim [*4]of innocence" ( People v East , 39 AD2d at 606 ) may alone provide a basis for granting a presentence motion to withdraw a plea, even where the evidence of innocence is "far from conclusive" ( People v De Jesus , 199 AD2d at 530 ; see People v Shipman , 14 NY2d 883, 883 ; People v Leslie , 98 AD2d 977 ; People v Arcuri , 64 AD2d at 1028-1029 ; People v McIntyre , 40 AD2d 1038 ).

2021Given the foregoing, in determining the defendant's presentence motion to withdraw his plea ( see CPL 220.60[3]), the Supreme Court was required to "either grant [the] application to allow the plea to be withdrawn; or conduct a hearing to determine whether the application has merit" ( People v McKennion , 27 NY2d at 673 ; see People v Tinsley , 35 NY2d at 927-928 ; People v McClain , 32 NY2d at 697-698 ; People v Nixon , 21 NY2d at 355 ; see also People v Shipman , 14 NY2d at 883 ; People v De Jesus , 199 AD2d at 530 ; People v Leslie , 98 AD2d 977 ; People v Arcuri , 64 AD2d at 1028-1029 ; Pe

2021It is clear that "an arguable claim [*4]of innocence" ( People v East , 39 AD2d at 606 ) may alone provide a basis for granting a presentence motion to withdraw a plea, even where the evidence of innocence is "far from conclusive" ( People v De Jesus , 199 AD2d at 530 ; see People v Shipman , 14 NY2d 883, 883 ; People v Leslie , 98 AD2d 977 ; People v Arcuri , 64 AD2d at 1028-1029 ; People v McIntyre , 40 AD2d 1038 ).

2021Given the foregoing, in determining the defendant's presentence motion to withdraw his plea ( see CPL 220.60[3]), the Supreme Court was required to "either grant [the] application to allow the plea to be withdrawn; or conduct a hearing to determine whether the application has merit" ( People v McKennion , 27 NY2d at 673 ; see People v Tinsley , 35 NY2d at 927-928 ; People v McClain , 32 NY2d at 697-698 ; People v Nixon , 21 NY2d at 355 ; see also People v Shipman , 14 NY2d at 883 ; People v De Jesus , 199 AD2d at 530 ; People v Leslie , 98 AD2d 977 ; People v Arcuri , 64 AD2d at 1028-1029 ; Pe

2021Given the foregoing, in determining the defendant's presentence motion to withdraw his plea ( see CPL 220.60[3]), the Supreme Court was required to "either grant [the] application to allow the plea to be withdrawn; or conduct a hearing to determine whether the application has merit" ( People v McKennion , 27 NY2d at 673 ; see People v Tinsley , 35 NY2d at 927-928 ; People v McClain , 32 NY2d at 697-698 ; People v Nixon , 21 NY2d at 355 ; see also People v Shipman , 14 NY2d at 883 ; People v De Jesus , 199 AD2d at 530 ; People v Leslie , 98 AD2d 977 ; People v Arcuri , 64 AD2d at 1028-1029 ; Pe

2021Given the foregoing, in determining the defendant's presentence motion to withdraw his plea ( see CPL 220.60[3]), the Supreme Court was required to "either grant [the] application to allow the plea to be withdrawn; or conduct a hearing to determine whether the application has merit" ( People v McKennion , 27 NY2d at 673 ; see People v Tinsley , 35 NY2d at 927-928 ; People v McClain , 32 NY2d at 697-698 ; People v Nixon , 21 NY2d at 355 ; see also People v Shipman , 14 NY2d at 883 ; People v De Jesus , 199 AD2d at 530 ; People v Leslie , 98 AD2d 977 ; People v Arcuri , 64 AD2d at 1028-1029 ; Pe

2021Given the foregoing, in determining the defendant's presentence motion to withdraw his plea ( see CPL 220.60[3]), the Supreme Court was required to "either grant [the] application to allow the plea to be withdrawn; or conduct a hearing to determine whether the application has merit" ( People v McKennion , 27 NY2d at 673 ; see People v Tinsley , 35 NY2d at 927-928 ; People v McClain , 32 NY2d at 697-698 ; People v Nixon , 21 NY2d at 355 ; see also People v Shipman , 14 NY2d at 883 ; People v De Jesus , 199 AD2d at 530 ; People v Leslie , 98 AD2d 977 ; People v Arcuri , 64 AD2d at 1028-1029 ; Pe

1997Accordingly, we reject petitioner’s claim even though the statutory classification may result in the denial of benefits to those with an arguable claim to favorable treatment (see, Mathews v Diaz, 426 US 67, 83 ).

1996Where, as here, defense counsel actively participates in the trial by effectively cross-examining witnesses, raising appropriate objections, presenting an arguable defense and delivering cogent opening and closing statements, a claim of ineffective assistance of counsel is meritless (see, People v Richards, 228 AD2d 792, 793 ; People v Parker, 220 AD2d 815, 816-817 , lv denied 87 NY2d 1023 ).

1996Where, as here, defense counsel actively participates in the trial by effectively cross-examining witnesses, raising appropriate objections, presenting an arguable defense and delivering cogent opening and closing statements, a claim of ineffective assistance of counsel is meritless (see, People v Richards, 228 AD2d 792, 793 ; People v Parker, 220 AD2d 815, 816-817 , lv denied 87 NY2d 1023 ).

1996In addition, the ordeal of a criminal trial with the possibility of conviction, standing alone, is not sufficiently harmful to warrant the use of prohibition even if the harm sought to be redressed implicates a constitutional right (see, Matter of Lipari v Owens, 70 NY2d 731, 733 ; Matter of Rush v Mordue, 68 NY2d 348, 354 ), nor is this remedy generally available to collaterally review an arguable error of law committed in a pending criminal action (see, Matter of Jacobs v Altman, 69 NY2d 733, 735 ).

1996In addition, the ordeal of a criminal trial with the possibility of conviction, standing alone, is not sufficiently harmful to warrant the use of prohibition even if the harm sought to be redressed implicates a constitutional right (see, Matter of Lipari v Owens, 70 NY2d 731, 733 ; Matter of Rush v Mordue, 68 NY2d 348, 354 ), nor is this remedy generally available to collaterally review an arguable error of law committed in a pending criminal action (see, Matter of Jacobs v Altman, 69 NY2d 733, 735 ).

1995Corp., 205 AD2d 388, 390 ), properly determined that an arguable defense has been raised such that a denial of summary judgment would be proper.

1995As to the denial of the motion to reargue, such order is not appealable (see, Spa Realty Assocs. v Springs Assocs., 213 AD2d 781, 783 ; Matter of Albany Community Dev.

1987Pritchard v Harris, 82 AD2d 842 , lv denied 54 NY2d 608 ).

1987With the single arguable exception of People v Medina ( 111 AD2d 653 , appeal dismissed 67 NY2d 644 ), none of the authorities cited in the court’s memorandum are relevant to the issue before us.

1987Prohibition is generally not available to collaterally review an arguable error of law committed in a pending criminal action (Matter of Gold v Gartenstein, 54 NY2d 627 ; Matter of State of New York v King, supra) or to challenge an illegal sentence (see, People ex rel.

1987Prohibition is generally not available to collaterally review an arguable error of law committed in a pending criminal action (Matter of Gold v Gartenstein, 54 NY2d 627 ; Matter of State of New York v King, supra) or to challenge an illegal sentence (see, People ex rel.

1987With the single arguable exception of People v Medina ( 111 AD2d 653 , appeal dismissed 67 NY2d 644 ), none of the authorities cited in the court’s memorandum are relevant to the issue before us.

1978The record suggests at least "an arguable defense * * * that ought to be tested on the merits” (see Becker v Belñ, 26 AD2d 818, 819 ).

1978While a bond or undertaking is not normally required to reopen an unintentional default (Pacific Northern Fence Corp. v Allied Fabricators, 19 AD2d 541 ), the possibility of corporate dissolution here renders such condition appropriate particularly upon the consent of defense counsel.

1976Under the circumstances, since the defendant has demonstrated that he has an arguable defense to the action, a trial of the issues should be had, and summary judgment was properly denied by Special Term (Jiffy Sew Corp. v Paar, 29 AD2d 643, 644 ; see, also, Rediscount Corp. of Amer. v Duke, 34 AD2d 898 ).

1969It was, therefore, a proper exercise of discretion on the part of the District Court to open the default (Machina v. Pryzgoda, 282 App. Div. 1051 ; Abrams v. Barnes, 16 A D 2d 936; Matter of Miller, 162 Misc. 563 , affd. 252 App. Div. 872 ).