aspect rule in New York

2017Although defendant sought to explore these matters in order to show that the witness was a self-employed prostitute, and that defendant did not advance or profit from her prostitution, defendant was still able to present this aspect of his defense (see People v Chin, 67 NY2d 22 [1986]; People v Sims, 209 AD2d 192 [1st Dept 1994], lv denied 84 NY2d 1015 [1994]).

2017Although defendant sought to explore these matters in order to show that the witness was a self-employed prostitute, and that defendant did not advance or profit from her prostitution, defendant was still able to present this aspect of his defense (see People v Chin, 67 NY2d 22 [1986]; People v Sims, 209 AD2d 192 [1st Dept 1994], lv denied 84 NY2d 1015 [1994]).

2011With these new admonitions in mind, I turn to the case currently before this Court, which requires us to consider the precise risks to which the infant consented by participating in what the plaintiff here does not dispute was an athletic activity within the purview of the doctrine. “[B]y engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d 471, 484 [1997]; see Brown v City of New York, 69 AD3d 893 [2

2011With these new admonitions in mind, I turn to the case currently before this Court, which requires us to consider the precise risks to which the infant consented by participating in what the plaintiff here does not dispute was an athletic activity within the purview of the doctrine. “[B]y engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d 471, 484 [1997]; see Brown v City of New York, 69 AD3d 893 [2

2002There is no claim that respondents refused to accept petitioner prior to November 20, 2000 and, therefore, petitioner’s failure to join the local official responsible for delivering him to the Department warranted dismissal of this final aspect of his claim (see, Matter of Bernier v New York State Dept. of Correctional Servs., 274 AD2d 717 ).

2002In any event, the record does not support defendant’s assertion that he was denied meaningful representation by his counsel’s alleged failure to properly investigate and pursue potential defenses (see People v Cleveland, 281 AD2d 815, 816 , lv denied 96 NY2d 900 ).

2002The remaining aspect of this claim, however, is encompassed by his knowing, voluntary and intelligent waiver of the right to appeal (see People v Sayles, 292 AD2d 641, 642 , lv denied 98 NY2d 681 ; People v Almonte, 288 AD2d 632, 633 , lv denied 97 NY2d 726 ).

2002The remaining aspect of this claim, however, is encompassed by his knowing, voluntary and intelligent waiver of the right to appeal (see People v Sayles, 292 AD2d 641, 642 , lv denied 98 NY2d 681 ; People v Almonte, 288 AD2d 632, 633 , lv denied 97 NY2d 726 ).

1995Thus, in Steele v New York State Dept. of Health ( 119 Misc 2d 963 [Sup Ct, Niagara County 1983]), the court denied a FOIL request for records including, inter alla, a memorandum from the attorney for respondent therein to respondent’s general counsel, which was based upon communications between respondent’s attorney and members of respondent’s staff, upon the court’s conclusion that "the background of the case and the surrounding circumstances contained in the record” supported an inference that the communications with respondent’s attorney were confidential.

1992Turning to the general legal rule, in Atkins v Crosland (supra), the Texas Supreme Court took the basic view that an injury must occur before a cause of action accrues (citing 34 Am Jur, Limitations of Actions, § 160; 54 CJS, Limitations of Actions, § 168).

1989The arresting officer’s failure to have advised the defendant that he was entitled to the assistance of counsel during the course of questioning by the officer, an aspect of the warnings to which he was clearly entitled, required suppression of the subsequently elicited statements (see, People v Hutchinson, 59 NY2d 923 ; People v Bracero, 117 AD2d 740 ).

1989The arresting officer’s failure to have advised the defendant that he was entitled to the assistance of counsel during the course of questioning by the officer, an aspect of the warnings to which he was clearly entitled, required suppression of the subsequently elicited statements (see, People v Hutchinson, 59 NY2d 923 ; People v Bracero, 117 AD2d 740 ).

1989We observe that the People’s alternative argument that the defendant’s statement was made in response to a police inquiry prompted by a concern for public safety and, therefore, need not have been preceded by Miranda warnings (see, e.g., New York v Quarles, 467 US 649 ; Matter of John C., 130 AD2d 246 ) was not advanced before the hearing court and may not be raised for the first time on appeal (see, People v Dodt, 61 NY2d 408, 416 ).

1989We observe that the People’s alternative argument that the defendant’s statement was made in response to a police inquiry prompted by a concern for public safety and, therefore, need not have been preceded by Miranda warnings (see, e.g., New York v Quarles, 467 US 649 ; Matter of John C., 130 AD2d 246 ) was not advanced before the hearing court and may not be raised for the first time on appeal (see, People v Dodt, 61 NY2d 408, 416 ).

1989We observe that the People’s alternative argument that the defendant’s statement was made in response to a police inquiry prompted by a concern for public safety and, therefore, need not have been preceded by Miranda warnings (see, e.g., New York v Quarles, 467 US 649 ; Matter of John C., 130 AD2d 246 ) was not advanced before the hearing court and may not be raised for the first time on appeal (see, People v Dodt, 61 NY2d 408, 416 ).

1983Amer. v United Fruit Co., 254 F Supp 233, 238 , affd in part and revd in part 373 F2d 408; and see Restatement, Judgments, § 62, Comment j, but see Comment k].) This aspect of the rule of section 62 has been criticized as being unduly harsh (see International Rys. of Cent.

1981Although an arguably close question is presented with regard to the last statement, this aspect of the hearing court’s ruling, clearly factual in character (see People v Tanner, 30 NY2d 102, 106 ), is also strongly supported by the record.

1979Also, of some relevance is the evaluation of the standards for application of the exclusionary rule to live-witness testimony delineated in United States v Ceccolini ( 435 US 268 ) which indicates a more restrictive application in the case of witnesses than in the case of inanimate evidentiary objects illegally seized.

1979In concluding this aspect of our analysis, we note that it seems reasonably clear that it was probable that the lawful surveillance of the defendants at Buster’s Lounge, apart from the electronic surveillance, having its inception in probable cause regarding illegal gambling, would have led the authorities in any event to an awareness of the identities of the persons who frequented this public establishment and were possibly, or even probably, known to the subjects of the investigation (see People v Mendez, 28 NY2d 94, 101 , supra).

1978Cushman v Cushman (supra) illustrates this aspect of the rule.

1976(Eggler v People, 56 NY 642 ; Thomas v People, 67 NY 218, 223 ; People v Druse, 103 NY 655 ; People v Gaimari, 176 NY 84, 95 , supra.) "[T]his is improper”, we said in People v Rodawald (supra), "not only because character is never established by proof of individual acts, but because each specific act shown would create a new issue.” ( 177 NY 408, 424 ; see 40 CJS, Homicide, § 222, subd a, par [2], pp 1141-1142.) Today we are called upon to reconsider this aspect of the rule.

1976(Eggler v People, 56 NY 642 ; Thomas v People, 67 NY 218, 223 ; People v Druse, 103 NY 655 ; People v Gaimari, 176 NY 84, 95 , supra.) "[T]his is improper”, we said in People v Rodawald (supra), "not only because character is never established by proof of individual acts, but because each specific act shown would create a new issue.” ( 177 NY 408, 424 ; see 40 CJS, Homicide, § 222, subd a, par [2], pp 1141-1142.) Today we are called upon to reconsider this aspect of the rule.

1976(Eggler v People, 56 NY 642 ; Thomas v People, 67 NY 218, 223 ; People v Druse, 103 NY 655 ; People v Gaimari, 176 NY 84, 95 , supra.) "[T]his is improper”, we said in People v Rodawald (supra), "not only because character is never established by proof of individual acts, but because each specific act shown would create a new issue.” ( 177 NY 408, 424 ; see 40 CJS, Homicide, § 222, subd a, par [2], pp 1141-1142.) Today we are called upon to reconsider this aspect of the rule.

1976(Eggler v People, 56 NY 642 ; Thomas v People, 67 NY 218, 223 ; People v Druse, 103 NY 655 ; People v Gaimari, 176 NY 84, 95 , supra.) "[T]his is improper”, we said in People v Rodawald (supra), "not only because character is never established by proof of individual acts, but because each specific act shown would create a new issue.” ( 177 NY 408, 424 ; see 40 CJS, Homicide, § 222, subd a, par [2], pp 1141-1142.) Today we are called upon to reconsider this aspect of the rule.

1976(Eggler v People, 56 NY 642 ; Thomas v People, 67 NY 218, 223 ; People v Druse, 103 NY 655 ; People v Gaimari, 176 NY 84, 95 , supra.) "[T]his is improper”, we said in People v Rodawald (supra), "not only because character is never established by proof of individual acts, but because each specific act shown would create a new issue.” ( 177 NY 408, 424 ; see 40 CJS, Homicide, § 222, subd a, par [2], pp 1141-1142.) Today we are called upon to reconsider this aspect of the rule.

1976(Eggler v People, 56 NY 642 ; Thomas v People, 67 NY 218, 223 ; People v Druse, 103 NY 655 ; People v Gaimari, 176 NY 84, 95 , supra.) "[T]his is improper”, we said in People v Rodawald (supra), "not only because character is never established by proof of individual acts, but because each specific act shown would create a new issue.” ( 177 NY 408, 424 ; see 40 CJS, Homicide, § 222, subd a, par [2], pp 1141-1142.) Today we are called upon to reconsider this aspect of the rule.

1975(People v Kress, 284 NY 452, 458-459 ; People v Dixon, 231 NY 111, 116 .) Thus, the purpose of this aspect of the rule is to be sure that the facts, even matters which in themselves may be of "seeming indifference”, "so harmonize with the accomplice’s narrative as to have a tendency to furnish the necessary connection between the defendant and the crime.” (People v Morhouse, 21 NY2d 66, 74 ; People v Dixon, supra, at pp 116-117 .) It is not necessary to exclude to a moral certainty every hypothesis but that of wrongdoing.