unavailability defense in New York

2026At best, defendant's theory would be relevant [*6] to his intent upon entering the store; however, the physical assaults that ensued coupled with defendant's repeated statements to pay him, irrespective of defendant's intermittent statements proclaiming that he worked, is indicative of his intent to deprive the victims of their money ( see generally People v Favors , 155 AD3d 1081, 1082 [3d Dept 2017]; People v Newell , 148 AD3d 1216, 1221 [3d Dept 2017], lv denied 29 NY3d 1035 [2017]).

2018By contrast, those courts which have rejected the unavailability rule have focused their analysis on the policy language that serves as the foundation for pro rata allocation ( see **120 *216 Boston Gas Co., 454 Mass. at 371-372 , 910 N.E.2d at 315 ; Sybron Transition Corp., 258 F.3d at 600 ), an approach that is more consistent with New York law ( see Consolidated Edison, 98 N.Y.2d at 221 , 746 N.Y.S.2d 622 , 774 N.E.2d 687 ).

2018Ultimately, because "the very essence of pro rata allocation is that the insurance policy language limits indemnification to losses and occurrences during the policy period" ( Matter of Viking Pump, 27 N.Y.3d at 261 , 33 N.Y.S.3d 118 , 52 N.E.3d 1144 ; see Consolidated Edison, 98 N.Y.2d at 224 , 746 N.Y.S.2d 622 , 774 N.E.2d 687 ), the unavailability rule cannot be reconciled with the pro rata approach.

2018Ultimately, because "the very essence of pro rata allocation is that the insurance policy language limits indemnification to losses and occurrences during the policy period" ( Matter of Viking Pump, 27 N.Y.3d at 261 , 33 N.Y.S.3d 118 , 52 N.E.3d 1144 ; see Consolidated Edison, 98 N.Y.2d at 224 , 746 N.Y.S.2d 622 , 774 N.E.2d 687 ), the unavailability rule cannot be reconciled with the pro rata approach.

2016This unavailability exception to , the rule of proration to the insured largely has its genesis in the New Jersey case of Owens-Illinois (138 NJ 437, 650 A2d 974 ).

2016The New Jersey Supreme Court, unable to find the answers to allocation in the language of the policies there at issue, looked to public interest factors for guidance, including, insofar as is relevant here, providing incentives for parties to engage in responsible conduct, avoiding disincentives to the acquisition of insurance and creating incentives that will tend to minimize the recurrence of the problems presented in the case before it (138 NJ at 471, 650 A2d at 992 ).

1996Because the delay from October 21, 1992, to November 10, 1992, was not caused by the People’s failure to be ready for trial, but by the unavailability of the defense counsel, who actively participated in setting the adjournment date, the People should have been charged with only one of the 21 days from October 20, 1992, to November 10, 1992 (see, CPL 30.30 [4] [b]; People v Morales, 181 AD2d 572 ; People v Gerstel, 134 AD2d 281 ; cf., People v Smith, 82 NY2d 676, 678 ).

1996Although the prosecution did not raise this argument at the Supreme Court, this Court is not bound by the position originally taken by the prosecution (see, e.g., People v Brown, 207 AD2d 556, 557 ; People v Gates, 70 AD2d 734 ).

1996Because the delay from October 21, 1992, to November 10, 1992, was not caused by the People’s failure to be ready for trial, but by the unavailability of the defense counsel, who actively participated in setting the adjournment date, the People should have been charged with only one of the 21 days from October 20, 1992, to November 10, 1992 (see, CPL 30.30 [4] [b]; People v Morales, 181 AD2d 572 ; People v Gerstel, 134 AD2d 281 ; cf., People v Smith, 82 NY2d 676, 678 ).

1996Because the delay from October 21, 1992, to November 10, 1992, was not caused by the People’s failure to be ready for trial, but by the unavailability of the defense counsel, who actively participated in setting the adjournment date, the People should have been charged with only one of the 21 days from October 20, 1992, to November 10, 1992 (see, CPL 30.30 [4] [b]; People v Morales, 181 AD2d 572 ; People v Gerstel, 134 AD2d 281 ; cf., People v Smith, 82 NY2d 676, 678 ).

1996Although the prosecution did not raise this argument at the Supreme Court, this Court is not bound by the position originally taken by the prosecution (see, e.g., People v Brown, 207 AD2d 556, 557 ; People v Gates, 70 AD2d 734 ).

1994Since the test-firing evidence was of a type accepted in the profession as reliable, and the fact of the test-firing did not establish any of the essential elements of the crime, the unavailability of the test-firer to establish a foundation did not make his report impermissible hearsay (People v Rosario, 179 AD2d 554 , lv denied 79 NY2d 1007 ; cf., People v Jones, 73 NY2d 427 ).

1994The requirement that the People establish the declarant’s unavailability before introducing a hearsay statement as a present sense impression arises, in part, from concern for a criminal defendant’s right of confrontation (see, People v Cook, 159 Misc 2d 430 ; Comment of NY Law Rev Commn, reprinted in Proposed NY Code of Evidence § 806, at 234 [1991]; see generally, US Const 6th Amend; NY Const, art I, § 6; People v Persico, 157 AD2d 339 ).

1994The requirement that the People establish the declarant’s unavailability before introducing a hearsay statement as a present sense impression arises, in part, from concern for a criminal defendant’s right of confrontation (see, People v Cook, 159 Misc 2d 430 ; Comment of NY Law Rev Commn, reprinted in Proposed NY Code of Evidence § 806, at 234 [1991]; see generally, US Const 6th Amend; NY Const, art I, § 6; People v Persico, 157 AD2d 339 ).

1994Since the test-firing evidence was of a type accepted in the profession as reliable, and the fact of the test-firing did not establish any of the essential elements of the crime, the unavailability of the test-firer to establish a foundation did not make his report impermissible hearsay (People v Rosario, 179 AD2d 554 , lv denied 79 NY2d 1007 ; cf., People v Jones, 73 NY2d 427 ).

1988Moreover, the unavailability of defense counsel is offset by the availability of three experts who examined defendant to determine his competency (see, People v Weech, 116 AD2d 975, 976-977 , supra; People v Arnold, 113 AD2d 101, 107-108 , supra; People v Wright, 105 AD2d 1088 , supra).

1988The People can call Dr. Reynolds (see, People v Weech, 105 AD2d 1085, 1086-1087 , supra), the other psychiatrist who examined defendant at the behest of the court, and the defense psychiatrist if his identity can be determined.

1988Moreover, the unavailability of defense counsel is offset by the availability of three experts who examined defendant to determine his competency (see, People v Weech, 116 AD2d 975, 976-977 , supra; People v Arnold, 113 AD2d 101, 107-108 , supra; People v Wright, 105 AD2d 1088 , supra).

1988Moreover, the unavailability of defense counsel is offset by the availability of three experts who examined defendant to determine his competency (see, People v Weech, 116 AD2d 975, 976-977 , supra; People v Arnold, 113 AD2d 101, 107-108 , supra; People v Wright, 105 AD2d 1088 , supra).

1980Moreover, “[w]here there is a need to remedy a common legal grievance, and where a class action serves to achieve economies of time, effort and expense, it is ‘superior’ to other forms of litigation even though individual claims are large” (Bryan v Amrep Corp., 429 F Supp 313, 318 , supra).

1975Hirschberg v Supreme Court, 269 NY 392 ; CPL 230.40; Rules of the App. Div., 2d Dept., 22 NYCRR 681.1 [b].) In opposing defendant’s renewed speedy trial claim on the merits, the People contend variously that: (1) any delay which occurred in this case prior to December 4, 1972, and particularly during the month of November, 1972, is chargeable to defendant by reason of adjournments requested by him or of time consumed in the pretrial motion stage; (2) they have been "continuously ready” for trial since December 4, 1972, and thus in compliance with the six-month "ready rule” prescribed in CPL 30