defendant raises claim in New York

2022Where, as here, a defendant raises a claim of self-defense, the trial court commits reversible error if it fails to "instruct the jury that, if it finds the defendant not guilty of a greater charge on the basis of justification, it is not to consider any lesser counts" ( People v Daniels , 174 AD3d at 957 [internal quotation marks, brackets and citations omitted]; see People v Herrera , 193 AD3d at 192-193; People v Akbar , 169 AD3d 708 , 709-710 [2019], lv [*6]dismissed 33 NY3d 1101 [2019]; People v Velez , 131 AD3d 129, 133-134 [2015]).

2022Where, as here, a defendant raises a claim of self-defense, the trial court commits reversible error if it fails to "instruct the jury that, if it finds the defendant not guilty of a greater charge on the basis of justification, it is not to consider any lesser counts" ( People v Daniels , 174 AD3d at 957 [internal quotation marks, brackets and citations omitted]; see People v Herrera , 193 AD3d at 192-193; People v Akbar , 169 AD3d 708 , 709-710 [2019], lv [*6] dismissed 33 NY3d 1101 [2019]; People v Velez , 131 AD3d 129, 133-134 [2015]).

2022Where a defendant raises the defense of duress, the People are "permitted to rebut [the] defense with evidence of [the defendant's] criminal disposition or inconsistent intent" ( People v Maldonado , 5 AD3d 505, 506 ), which evidence may include proof of another crime ( see People v Calvano , 30 NY2d 199, 205 ).

2022Where a defendant raises the defense of duress, the People are "permitted to rebut [the] defense with evidence of [the defendant's] criminal disposition or inconsistent intent" ( People v Maldonado , 5 AD3d 505, 506 ), which evidence may include proof of another crime ( see People v Calvano , 30 NY2d 199, 205 ).

2017To the extent that the defendant raises a claim predicated on Padilla v Kentucky ( 559 US 356 [2010]), the record does not demonstrate whether defense counsel misadvised or failed to advise him about the possibility of deportation before he pleaded guilty.

2017A motion pursuant to CPL 440.10 is the appropriate forum for reviewing any such claim which relates to matters not on the record (see People v Pastor, 28 NY3d 1089 [2016]; People v Peque, 22 NY3d at 202 ; People v Drammeh, 100 AD3d 650, 651 [2012]).

2017A motion pursuant to CPL 440.10 is the appropriate forum for reviewing any such claim which relates to matters not on the record (see People v Pastor, 28 NY3d 1089 [2016]; People v Peque, 22 NY3d at 202 ; People v Drammeh, 100 AD3d 650, 651 [2012]).

2016Where a defendant raises a defense that goes to the entire transaction, she need not make specific denial to the scheduled items (see Green v Harris Beach & Wilcox, 202 AD2d 993 [4th Dept 1994]).

2016His prompt complaint coupled with his insistence that he would prefer to go to trial and face a felony conviction and a term of imprisonment, rather than provide a DNA sample, establishes that this consequence “was of such great importance to him that he would have made a different decision had that consequence been disclosed” (People v Gravino, 14 NY3d at 559 ).

2010To the extent that the defendant raises a claim under the Due Process Clause of the United States Constitution (see US Const, 14th Amend, § 1), his contention is without merit (see Hawkins v Freeman, 195 F3d 732, 750 [1999]; DeWitt v Ventetoulo, 6 F3d 32, 35 [1993], cert denied 511 US 1032 [1994]; cf. Breest v Helgemoe, 579 F2d 95, 101 [1978], cert denied 439 US 933 [1978]).

2010To the extent that the defendant raises a claim under the Due Process Clause of the United States Constitution (see US Const, 14th Amend, § 1), his contention is without merit (see Hawkins v Freeman, 195 F3d 732, 750 [1999]; DeWitt v Ventetoulo, 6 F3d 32, 35 [1993], cert denied 511 US 1032 [1994]; cf. Breest v Helgemoe, 579 F2d 95, 101 [1978], cert denied 439 US 933 [1978]).

2001When a defendant raises a claim of discrimination pursuant to Batson v Kentucky ( 476 US 79 ) to a prosecutor’s peremptory challenge, and the prosecutor’s explanation is based on the prospective juror’s employment, the explanation should be related to the facts of the case before the challenge is sustained (see, People v Richie, 217 AD2d 84, 88 ).

2001When a defendant raises a claim of discrimination pursuant to Batson v Kentucky ( 476 US 79 ) to a prosecutor’s peremptory challenge, and the prosecutor’s explanation is based on the prospective juror’s employment, the explanation should be related to the facts of the case before the challenge is sustained (see, People v Richie, 217 AD2d 84, 88 ).

1996In this case, the defendant and his companion were observed in close proximity to the location given in the radio call and were the only individuals present who closely matched the descriptions received by the officers; therefore, the reliability of the report was properly assumed (compare, People v Tucker, 207 AD2d 748 , lv denied 84 NY2d 940 , and Matter of Dalmin M., 201 AD2d 343 , appeal dismissed 83 NY2d 883 ).

1996In this case, the defendant and his companion were observed in close proximity to the location given in the radio call and were the only individuals present who closely matched the descriptions received by the officers; therefore, the reliability of the report was properly assumed (compare, People v Tucker, 207 AD2d 748 , lv denied 84 NY2d 940 , and Matter of Dalmin M., 201 AD2d 343 , appeal dismissed 83 NY2d 883 ).

1996In this case, the defendant and his companion were observed in close proximity to the location given in the radio call and were the only individuals present who closely matched the descriptions received by the officers; therefore, the reliability of the report was properly assumed (compare, People v Tucker, 207 AD2d 748 , lv denied 84 NY2d 940 , and Matter of Dalmin M., 201 AD2d 343 , appeal dismissed 83 NY2d 883 ).

1993However, where a defendant raises a challenge to the permissible extent of such action, the People have the burden of demonstrating that the action taken was justified (see, People v Benjamin, supra; People v Lypka, 36 NY2d 210 ).

1993However, where a defendant raises a challenge to the permissible extent of such action, the People have the burden of demonstrating that the action taken was justified (see, People v Benjamin, supra; People v Lypka, 36 NY2d 210 ).

1980The interposition of a plea of insanity waives the privilege against self incrimination (see Matter of Lee v County Ct. of Erie County, 27 NY2d 432 , cert den 404 US 823 ; People v Traver, 70 Misc 2d 162 ).

1980The interposition of a plea of insanity waives the privilege against self incrimination (see Matter of Lee v County Ct. of Erie County, 27 NY2d 432 , cert den 404 US 823 ; People v Traver, 70 Misc 2d 162 ).

1980The interposition of a plea of insanity waives the privilege against self incrimination (see Matter of Lee v County Ct. of Erie County, 27 NY2d 432 , cert den 404 US 823 ; People v Traver, 70 Misc 2d 162 ).

1978When the defendant raises the claim of voluntariness of a confession, it is the duty of the appellate court to examine the record and make an independent determination of the claim (Beckwith v United States, 425 US 341, 348 ).

1978Because it is presumed that custodial questioning denies an individual the power to choose to remain silent, a statement obtained under such circumstances is excluded, unless it is demonstrated that a knowing and intelligent waiver had been made (Garner v United States, 424 US 648, 657 ).

1961While the burden of proof does not shift to the defendant to prove its innocence of the essential elements which make up the crime, it is its duty to produce the proof which it relies on as showing its defense (People v. Stern, 201 App. Div. 687 ).

1931(Mann v. Munch Brewery, 225 N. Y. 189 .) There is a provision in the lease that the tenant shall not assign same without the written consent of the landlord and that there shall be no waiver of this provision unless expressed in writing and signed by the landlord.