timing hearing in New York

2026See also Carter , 91 NY2d at 798 (simplifying England into a timing rule).

2026See also Carter , 91 NY2d at 798 (simplifying England into a timing rule).

2024Additionally, where an "accusatory supersedes an original instrument, for purposes of CPL § 30.30, provided the second instrument directly derives from the initial instrument, the date of commencement is the date of the original instrument" ( see People v Jeffer , 75 Misc 3d 1227[A] , 2022 NY Slip Op 50679[U] , *3 [City Court, Yonkers 2022]["The CPL fails to define derive and accordingly, this term should be given its ordinary meaning which means to trace or [*3]originate"][internal citations omitted] citing People v Osgood , 52 NY2d 37, 44 [1980]).

2024Additionally, where an "accusatory supersedes an original instrument, for purposes of CPL § 30.30, provided the second instrument directly derives from the initial instrument, the date of commencement is the date of the original instrument" ( see People v Jeffer , 75 Misc 3d 1227[A] , 2022 NY Slip Op 50679[U] , *3 [City Court, Yonkers 2022]["The CPL fails to define derive and accordingly, this term should be given its ordinary meaning which means to trace or [*3]originate"][internal citations omitted] citing People v Osgood , 52 NY2d 37, 44 [1980]).

2014It is well settled that the burden rests on the proponent of a novel theory advanced on the eve of trial to demonstrate good cause for its admission, especially where a new 3101 (d) response notices a new expert in support of the novel theory (see Lissak v Cerabona, 10 AD3d 308, 309-310 [1st Dept 2004]; Kassis v Teachers Ins. & Annuity Assn., 258 AD2d 271 [1st Dept 1999]).

2014It is well settled that the burden rests on the proponent of a novel theory advanced on the eve of trial to demonstrate good cause for its admission, especially where a new 3101 (d) response notices a new expert in support of the novel theory (see Lissak v Cerabona, 10 AD3d 308, 309-310 [1st Dept 2004]; Kassis v Teachers Ins. & Annuity Assn., 258 AD2d 271 [1st Dept 1999]).

2026Given that the "[e]xclusion of relevant and probative testimony as a sanction for a defendant's failure to comply with a statutory notice requirement implicates a defendant's constitutional right to present witnesses in his own defense" ( People v Berk , 88 NY2d 257, 266 [1996]), to aid in this discretionary determination, "the trial court must 'weigh [the defendant's constitutional] right against the resultant prejudice to the People from the belated notice' " ( Sidbury , 42 NY3d at 507, quoting Berk , 88 NY2d at 266).

2026Given that the "[e]xclusion of relevant and probative testimony as a sanction for a defendant's failure to comply with a statutory notice requirement implicates a defendant's constitutional right to present witnesses in his own defense" ( People v Berk , 88 NY2d 257, 266 [1996]), to aid in this discretionary determination, "the trial court must 'weigh [the defendant's constitutional] right against the resultant prejudice to the People from the belated notice' " ( Sidbury , 42 NY3d at 507 , quoting Berk , 88 NY2d at 266 ).

2026Given that the "[e]xclusion of relevant and probative testimony as a sanction for a defendant's failure to comply with a statutory notice requirement implicates a defendant's constitutional right to present witnesses in his own defense" ( People v Berk , 88 NY2d 257, 266 [1996]), to aid in this discretionary determination, "the trial court must 'weigh [the defendant's constitutional] right against the resultant prejudice to the People from the belated notice' " ( Sidbury , 42 NY3d at 507, quoting Berk , 88 NY2d at 266).

2026Given that the "[e]xclusion of relevant and probative testimony as a sanction for a defendant's failure to comply with a statutory notice requirement implicates a defendant's constitutional right to present witnesses in his own defense" ( People v Berk , 88 NY2d 257, 266 [1996]), to aid in this discretionary determination, "the trial court must 'weigh [the defendant's constitutional] right against the resultant prejudice to the People from the belated notice' " ( Sidbury , 42 NY3d at 507, quoting Berk , 88 NY2d at 266).

2026Here, defendant's motion was made in writing and provided the requisite notice.</p> <p>As we noted in <i>Lawrence</i>, there is "good reason for the distinction" between this specific timing requirement for speedy trial motions and the timing applicable to other pretrial motions generally ( 64 NY2d at 204-205 [noting that unlike other types of pretrial motions with a deadline of 45 days from arraignment as provided for in CPL 255.20, "it would be highly unusual that the statutory period of delay could elapse within" that time period for speedy trial motions]).

2008In any event, we conclude that any error in the timing of the hearing is harmless inasmuch as defendant has failed to identify any trial testimony of the People’s witnesses that could have been impeached by the use of the transcript of the hearing (see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).

2008In any event, we conclude that any error in the timing of the hearing is harmless inasmuch as defendant has failed to identify any trial testimony of the People’s witnesses that could have been impeached by the use of the transcript of the hearing (see generally People v Crimmins, 36 NY2d 230, 241-242 [1975]).

2008We further conclude that defendant’s general objection to the timing of the hearing, which was conducted after the commencement of trial, is insufficient to preserve for our review his present contention that he did not have enough time in which to procure a transcript of the hearing for impeachment purposes at trial (see CPL 470.05 [2]; see generally People v Balls, 69 NY2d 641 [1986]).

2008Contrary to the further contention of defendant, the evidence is legally sufficient to establish that he displayed what appeared to be a pistol, an element of robbery in the first degree (see People v Williams, 286 AD2d 918 [2001], lv denied 97 NY2d 763 [2002]; see generally People v Lopez, 73 NY2d 214, 220-221 [1989]; People v Bleakley, 69 NY2d 490, 495 [1987]).

2008Contrary to the further contention of defendant, the evidence is legally sufficient to establish that he displayed what appeared to be a pistol, an element of robbery in the first degree (see People v Williams, 286 AD2d 918 [2001], lv denied 97 NY2d 763 [2002]; see generally People v Lopez, 73 NY2d 214, 220-221 [1989]; People v Bleakley, 69 NY2d 490, 495 [1987]).

2006As to the timing of the waiver, the language of CPL 320.10 (1) provides that a defendant “may at any time before trial waive a jury trial.” The courts, however, have extended the “before trial” language to include instances where an adequate waiver—one that is knowing, voluntary, and intelligent—is executed at an early stage of the proceedings (see People v Williams, 289 AD2d 48 [2001]; People v Rodriguez, 186 AD2d 63 [1992]; People v Jones, 178 AD2d 244 [1991]; People v Satcher, 144 AD2d 992 [1988]; People v Kravitz, 140 AD2d 972 [1988]; cf. People v Finkle, 262 AD2d 971, 973 [1999]).

1997(Matter of Lee TT. v Dowling, 87 NY2d 699 , supra; Matter of Lentlie v Egan, 61 NY2d 874 , supra; Matter of Bezar v New York State Dept. of Social Servs., 151 AD2d 44 , supra; Matter of Ray Pharmacy v Perales, 169 AD2d 633 , supra; Matter of Khawaja v Kaladjian, 207 AD2d 398 , supra; Matter of Bora v New York State Dept. of Social Servs., 152 AD2d 10 , supra.) In addition, there is no question that in this State the unfairness of the timing of a hearing where loss of one’s means of support is at stake can amount to a due process violation.

1997(Matter of Lee TT. v Dowling, supra, at 712 [dissemination of report of child abuse prior to hearing and determination is a violation of due process]; Matter of Jones v Berman, 37 NY2d 42, 55-56 [immediate hearing required on denial of application for emergency relief under Aid to Families with Dependent Children Program, 60-day wait for a fair hearing was a denial of due process]; Matter of Pelaez v Waterfront Commn., 77 AD2d 947 , supra [more than three-month suspension from work without pay pending hearing and determination violates due process].) The process that is due depends on three di

1997(Matter of Lee TT. v Dowling, supra, at 712 [dissemination of report of child abuse prior to hearing and determination is a violation of due process]; Matter of Jones v Berman, 37 NY2d 42, 55-56 [immediate hearing required on denial of application for emergency relief under Aid to Families with Dependent Children Program, 60-day wait for a fair hearing was a denial of due process]; Matter of Pelaez v Waterfront Commn., 77 AD2d 947 , supra [more than three-month suspension from work without pay pending hearing and determination violates due process].) The process that is due depends on three di