mechanical rule in New York

1987Specifically, the Court of Appeals stated in People v Brown (supra, at 391 ): "On the basis of these three cases we conclude that the Supreme Court has formulated a double jeopardy rule—albeit what may be characterized as a mechanical rule—which precludes the People from taking an appeal from an adverse trial ruling whenever such appeal if resolved favorably for the People might require the defendant to stand retrial—or even if it would then be necessary for the trial court 'to make supplemental findings’ (United States v Jenkins, 420 US 358, 370 , supra).

1979In the Brown case (p 391, supra), the Court of Appeals, following the principles set forth in United States v Jenkins ( 420 US 358 ) and its companion cases (United States v Wilson, 420 US 332 and Serfass v United States, 420 US 377 ), held: "On the basis of these three cases we conclude that the Supreme Court has formulated a double jeopardy rule — albeit what may be characterized as a mechanical rule — which precludes the People from taking an appeal from an adverse trial ruling whenever such appeal if resolved favorably for the People might require the defendant to stand retrial — or even i

1992The troublesome nature of a strict application of the Spier rule was expressed in a footnote in DiMauro v Metropolitan Suburban Bus Auth. ( 105 AD2d 236, 247, n 4 , supra), when the Second Department, without commenting upon CPLR article 14-A, observed: "[W]e express some reluctance in following the mechanical rule set forth in Spier v Barker ( 35 NY2d 444 ), which effectively imposes 100% liability upon an unbelted plaintiff for injuries sustained as a result of his or her failure to wear a seat belt, notwithstanding the fact that he or she may have been blameless in causing the accident in t

1984In ruling as we do, we express some reluctance in following the mechanical rule set forth in Spier v Barker ( 35 NY2d 444 ), which effectively imposes 100% liability upon an unbelted plaintiff for injuries sustained as a result of his or her failure to wear a seat belt, notwithstanding the fact that he or she may have been blameless in causing the accident in the first instance.

1979In the Brown case (p 391, supra), the Court of Appeals, following the principles set forth in United States v Jenkins ( 420 US 358 ) and its companion cases (United States v Wilson, 420 US 332 and Serfass v United States, 420 US 377 ), held: "On the basis of these three cases we conclude that the Supreme Court has formulated a double jeopardy rule — albeit what may be characterized as a mechanical rule — which precludes the People from taking an appeal from an adverse trial ruling whenever such appeal if resolved favorably for the People might require the defendant to stand retrial — or even i

1976Illinois v. Somerville, 410 U. S. 458, 467 .” (Serfass v Wilson, 420 US 377, 390 , supra; see, also, United States v Jorn, 400 US 470, 480 , supra [a "mechanical rule prohibiting retrial whenever circumstances compel the discharge of a jury without the defendant’s consent would be too high a price to pay for the added assurance of personal security and freedom from governmental harassment which such a mechanical rule would provide”].) Thus, while we recognize that permitting the People to appeal trial orders dismissing an indictment on a pure question of law could be determined not to be in co

1969These are not technical; they are the factual and practical considerations of every-day life on which reasonable and prudent men, not legal technicians, act ’ (Brinegar v. United States, 338 U. S. 160, 175 ).” Another point of view is the classic statement of probable, or reasonable, cause as expressed by Chief Justice Marshall in Locke v. United States (7 Cranch [11 U. S.] 339, 348): “It may be added, that the term ‘ probable cause, ’ according to its usual acceptation, means less than evidence which would justify condemnation * * * It imports a seizure made under cir'cUfnstances which warran

1963These aré not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act” (Brinegar v. United States, 338 U.S. 160,175 ).

2021As explained in Loehr , however, "whether the services of a particular Justice are 'necessary to expedite the business of the court' encompasses much more than a mechanical inquiry into the size of the courts' docket divided by the number of Justices" ( Matter of Loehr v Administrative Bd. of the Cts. of the State of N.Y. , 29 NY3d at 382 , quoting NY Const, art VI, § 25 [b]).

2021Loehr advises, however, that a determination premised solely on what is always trueis nothing more than a mechanical inquiry that does not involve an exercise of discretion; rather, it results in decisions that could be made by "functionaries responsible for the court's docket or budget" ( id. at 382 ), not ones entrusted to the discretion of a "high level certifying authority endowed with peculiar experience and expertise" ( id. [internal quotation marks and citations omitted]).

1985Second, despite Conner and Lesman (supra), the minority and Special Term have determined that there is a legal distinction between a college degree and a license. 4 I fail to appreciate the difference.

1982(People v Servidio, 77 AD2d 191, 197 , affd 54 NY2d 951, 953 , supra.) The important factor in the instant case was the police awareness of an attorney’s presence on defendant’s behalf rather than the precise terms of the retainer or the appointment.

1982(People v Servidio, 77 AD2d 191, 197 , affd 54 NY2d 951, 953 , supra.) The important factor in the instant case was the police awareness of an attorney’s presence on defendant’s behalf rather than the precise terms of the retainer or the appointment.

1979In the Brown case (p 391, supra), the Court of Appeals, following the principles set forth in United States v Jenkins ( 420 US 358 ) and its companion cases (United States v Wilson, 420 US 332 and Serfass v United States, 420 US 377 ), held: "On the basis of these three cases we conclude that the Supreme Court has formulated a double jeopardy rule — albeit what may be characterized as a mechanical rule — which precludes the People from taking an appeal from an adverse trial ruling whenever such appeal if resolved favorably for the People might require the defendant to stand retrial — or even i

1976Illinois v. Somerville, 410 U. S. 458, 467 .” (Serfass v Wilson, 420 US 377, 390 , supra; see, also, United States v Jorn, 400 US 470, 480 , supra [a "mechanical rule prohibiting retrial whenever circumstances compel the discharge of a jury without the defendant’s consent would be too high a price to pay for the added assurance of personal security and freedom from governmental harassment which such a mechanical rule would provide”].) Thus, while we recognize that permitting the People to appeal trial orders dismissing an indictment on a pure question of law could be determined not to be in co

1973(See, e.g., People v. Jackson, 111 N. Y. 362 , supra.) Nor should the court be required to permit the prosecution, to lapse pending the return of a witness from a foreign jurisdiction, or a fugitive hide-a-way.

1948Such dismissal, however, would rest in the sound discretion of the court, whereas, under the rule of the Nichols case, the impleader is improper as a matter of law if there is not the required identity, irrespective of any danger of confusion of delay.” (See 2 Carmody on New York Pleading and Practice, p. 874, quoted in Travlos v. Commercial Union of America, Inc., 217 App. Div. 352, 357 .) Relative to the rule adopted in Nichols v. Clark, MacMullen & Riley, Inc. ( 261 N. Y. 118 ), to effect that if impleader were permitted and the jury returned a verdict for the plaintiff, there would be no w

1948Such dismissal, however, would rest in the sound discretion of the court, whereas, under the rule of the Nichols case, the impleader is improper as a matter of law if there is not the required identity, irrespective of any danger of confusion of delay.” (See 2 Carmody on New York Pleading and Practice, p. 874, quoted in Travlos v. Commercial Union of America, Inc., 217 App. Div. 352, 357 .) Relative to the rule adopted in Nichols v. Clark, MacMullen & Riley, Inc. ( 261 N. Y. 118 ), to effect that if impleader were permitted and the jury returned a verdict for the plaintiff, there would be no w

1948Such dismissal, however, would rest in the sound discretion of the court, whereas, under the rule of the Nichols case, the impleader is improper as a matter of law if there is not the required identity, irrespective of any danger of confusion of delay.” (See 2 Carmody on New York Pleading and Practice, p. 874, quoted in Travlos v. Commercial Union of America, Inc., 217 App. Div. 352, 357 .) Relative to the rule adopted in Nichols v. Clark, MacMullen & Riley, Inc. ( 261 N. Y. 118 ), to effect that if impleader were permitted and the jury returned a verdict for the plaintiff, there would be no w