actions defense in New York

2000At the outset we note that the courts of this State have not adopted the Strickland test for determining ineffective assistance of counsel claims but continue to apply a flexible standard to analyze claims based upon a deprivation of the right to effective assistance of counsel guaranteed under the New York Constitution (see, People v Benevento, supra, at 715; People v Vilardi, 76 NY2d 67, 74 ; People v Rivera, 71 NY2d 705 ; People v Benn, 68 NY2d 941 ; People v Baldi, 54 NY2d 137 , supra).

1997Thus, defendant has failed to establish that he was denied his constitutional right to effective assistance of counsel (see, People v Rivera, 71 NY2d 705, 709 ; People v Baldi, supra).

2000At the outset we note that the courts of this State have not adopted the Strickland test for determining ineffective assistance of counsel claims but continue to apply a flexible standard to analyze claims based upon a deprivation of the right to effective assistance of counsel guaranteed under the New York Constitution (see, People v Benevento, supra, at 715; People v Vilardi, 76 NY2d 67, 74 ; People v Rivera, 71 NY2d 705 ; People v Benn, 68 NY2d 941 ; People v Baldi, 54 NY2d 137 , supra).

1997Thus, defendant has failed to establish that he was denied his constitutional right to effective assistance of counsel (see, People v Rivera, 71 NY2d 705, 709 ; People v Baldi, supra).

2005An intentional tort, such as the assault here, committed by an employee, can result in liability for his or her employer under respondeat superior if the employee was acting “within the scope of the . . . employment” at the time of the commission of the tort (see Riviello v Waldron, supra at 303; De Wald v Seidenberg, 297 NY 335 [1948]). “[T]he employer need not have foreseen the precise act or the exact manner of the injury as long as the general type of conduct may have been reasonably expected” (Riviello, supra at 304 ).

2003In addition, “when viewed in light of the trial as a whole, the actions of defense counsel of which defendant now complains [the failure to raise objections] could be attributed to tactical trial decisions” (Pe ople v Ryan, 93 NY2d at 823-824 ).

2003De spite the common issues shared by the actions at bar, under all of the circumstances; including the disparity between the stages of litigation to which each case has progressed (see Gouldsbury v Dan’s Supreme Supermarket, 138 AD2d 675 [1988]), and the fact that a joint trial may prove unwieldy (see Stephens v Allstate Ins.

2003The decision not to object to prosecutorial actions may simply “reflect ‘a reasonable and legitimate strategy under the circumstances and evidence presented’ ” (People v Tonge, 90 NY2d at 840 , quoting People v Benevento, 91 NY2d at 713 ).

2000At the outset we note that the courts of this State have not adopted the Strickland test for determining ineffective assistance of counsel claims but continue to apply a flexible standard to analyze claims based upon a deprivation of the right to effective assistance of counsel guaranteed under the New York Constitution (see, People v Benevento, supra, at 715; People v Vilardi, 76 NY2d 67, 74 ; People v Rivera, 71 NY2d 705 ; People v Benn, 68 NY2d 941 ; People v Baldi, 54 NY2d 137 , supra).

2000Defendant also asks that we scrutinize the actions of defense counsel in light of the Federal standard which requires a showing that counsel’s performance was deficient and that such deficiency prejudiced defendant to the point that a reasonable probability of a different result existed but for counsel’s unprofessional errors (see, Strickland v Washington, 466 US 668, 694 ; cf., People v Ford, 86 NY2d 397, 405 ).

2000Defendant also asks that we scrutinize the actions of defense counsel in light of the Federal standard which requires a showing that counsel’s performance was deficient and that such deficiency prejudiced defendant to the point that a reasonable probability of a different result existed but for counsel’s unprofessional errors (see, Strickland v Washington, 466 US 668, 694 ; cf., People v Ford, 86 NY2d 397, 405 ).

2000At the outset we note that the courts of this State have not adopted the Strickland test for determining ineffective assistance of counsel claims but continue to apply a flexible standard to analyze claims based upon a deprivation of the right to effective assistance of counsel guaranteed under the New York Constitution (see, People v Benevento, supra, at 715; People v Vilardi, 76 NY2d 67, 74 ; People v Rivera, 71 NY2d 705 ; People v Benn, 68 NY2d 941 ; People v Baldi, 54 NY2d 137 , supra).

1996Notwithstanding the original terms of claimant’s hiring, the employer had a right to request claimant to work a reasonable amount of overtime (see, Matter of Beehan [Sweeney], 226 AD2d 875 ; Matter of Bisson [Hartnett], 170 AD2d 738 ) and to provide the Saturday schedules requested during the busy holiday season.

1996It is well settled that a finding of misconduct will be sustained if substantial evidence demonstrates that a claimant’s actions are in violation of an employer’s reasonable work conditions (see, Matter of Velazquez [Hudacs], 204 AD2d 928 ).

1996Notwithstanding the original terms of claimant’s hiring, the employer had a right to request claimant to work a reasonable amount of overtime (see, Matter of Beehan [Sweeney], 226 AD2d 875 ; Matter of Bisson [Hartnett], 170 AD2d 738 ) and to provide the Saturday schedules requested during the busy holiday season.

1992In view of the entire case, including the results obtained in the dismissal and acquittal of three of the charges, it appears that the actions of defense counsel were reasonable and that defendant was afforded meaningful representation (see, People v Black, 183 AD2d 969 970-971 ; People v Kieser, 172 AD2d 626 , affd 79 NY2d 936 ).

1992In view of the entire case, including the results obtained in the dismissal and acquittal of three of the charges, it appears that the actions of defense counsel were reasonable and that defendant was afforded meaningful representation (see, People v Black, 183 AD2d 969 970-971 ; People v Kieser, 172 AD2d 626 , affd 79 NY2d 936 ).

1992In view of the entire case, including the results obtained in the dismissal and acquittal of three of the charges, it appears that the actions of defense counsel were reasonable and that defendant was afforded meaningful representation (see, People v Black, 183 AD2d 969 970-971 ; People v Kieser, 172 AD2d 626 , affd 79 NY2d 936 ).

1991A joint trial of the actions at bar would not serve the stated purpose of CPLR 602 (a), to wit, to avoid unnecessary costs and delay.” (Aluminum Mill Supply Corp. v Skyview Metals, 117 AD2d 765, 767-768 .) Also, we perceive a risk of prejudice to defendant if these actions were to be jointly tried.

1988I reject this argument for the reasons stated in People v Muriale ( 138 Misc 2d 1056 [Sup Ct, Kings County 1988, Juviler, J.]) and People v Gary M. ( 138 Misc 2d 1081 [Sup Ct, Kings County 1988, Kramer, J.]; but see, Holtzman v Supreme Ct., 139 Misc 2d 109 [Sup Ct, Westchester County 1988, Rosato, J.]).

1988I reject this argument for the reasons stated in People v Muriale ( 138 Misc 2d 1056 [Sup Ct, Kings County 1988, Juviler, J.]) and People v Gary M. ( 138 Misc 2d 1081 [Sup Ct, Kings County 1988, Kramer, J.]; but see, Holtzman v Supreme Ct., 139 Misc 2d 109 [Sup Ct, Westchester County 1988, Rosato, J.]).

1981Both plaintiffs in the actions at bar are members of the New York State Health Facilities Association, a petitioner in Matter of Kaye v Whalen (supra), but they were not named party petitioners in that proceeding.

1981“Where the defendant seeks an adjournment or consents to an adjournment requested by the People, his conduct constitutes a waiver of his right to complain of any delay occasioned thereby” (People v Pace, 71 AD2d 609, 610 ).

1970The Appellate Division, First Department, first considered the question in Dwan v. Massarene ( 199 App. Div. 872 ).

1952Even in cases where issue has not been joined in one of the actions, consolidation has been granted (Lee v. Schmeltzer, 229 App. Div. 206 ).

1916Co., 173 App. Div. 192 .)- If the actions at bar were submitted properly to the jury this court would not be inclined to disturb the verdicts on the question of the liability of the defendants.