rebuttal presumption in New York

2002As this Court held in Matter of Stephen R. ( 182 AD2d 92, 95 ), “That the driver’s use of the car was, by all appearances, lawful is sufficient to rebut any presumption that appellant [who was sitting next to the driver in the front passenger seat of a parked car] knew it was being used without authority and casts upon the presentment agency ‘a heavy burden * * * to negative this rebuttal of the presumption, in order to sustain conviction based on proof beyond a reasonable doubt’ (People v McCaleb, [ 25 NY2d 394 ] at 401).” It is well settled that “[e]vidence of an arresting officer’s direct o

1992That the driver’s use of the car was, by all appearances, lawful is sufficient to rebut any presumption that appellant knew it was being used without authority and casts upon the presentment agency "a heavy burden * * * to negative this rebuttal of the presumption, in order to sustain conviction based on proof beyond a reasonable doubt” (People v McCaleb, supra, at 401 ).

2005In our view, the prosecutor’s summation constituted fair comment on the evidence and was an appropriate rebuttal to defense counsel’s summation in which he attacked the People’s witnesses (see People v Barber, 13 AD3d 898, 900 [2004], lv denied 4 NY3d 796 [2005]; People v Geddes, 258 AD2d 679, 681 [1999], lv denied 93 NY2d 970 [1999]).

2002As this Court held in Matter of Stephen R. ( 182 AD2d 92, 95 ), “That the driver’s use of the car was, by all appearances, lawful is sufficient to rebut any presumption that appellant [who was sitting next to the driver in the front passenger seat of a parked car] knew it was being used without authority and casts upon the presentment agency ‘a heavy burden * * * to negative this rebuttal of the presumption, in order to sustain conviction based on proof beyond a reasonable doubt’ (People v McCaleb, [ 25 NY2d 394 ] at 401).” It is well settled that “[e]vidence of an arresting officer’s direct o

2002As this Court held in Matter of Stephen R. ( 182 AD2d 92, 95 ), “That the driver’s use of the car was, by all appearances, lawful is sufficient to rebut any presumption that appellant [who was sitting next to the driver in the front passenger seat of a parked car] knew it was being used without authority and casts upon the presentment agency ‘a heavy burden * * * to negative this rebuttal of the presumption, in order to sustain conviction based on proof beyond a reasonable doubt’ (People v McCaleb, [ 25 NY2d 394 ] at 401).” It is well settled that “[e]vidence of an arresting officer’s direct o

2002As this Court held in Matter of Stephen R. ( 182 AD2d 92, 95 ), “That the driver’s use of the car was, by all appearances, lawful is sufficient to rebut any presumption that appellant [who was sitting next to the driver in the front passenger seat of a parked car] knew it was being used without authority and casts upon the presentment agency ‘a heavy burden * * * to negative this rebuttal of the presumption, in order to sustain conviction based on proof beyond a reasonable doubt’ (People v McCaleb, [ 25 NY2d 394 ] at 401).” It is well settled that “[e]vidence of an arresting officer’s direct o

1987Therefore, the fact patterns where the rebuttal of the presumption has been held sufficiently strong to warrant summary judgment or a directed verdict have generally been where the uncontrovertible proof established that the driver had stolen the vehicle (see, Albouyeh v County of Suffolk, 96 AD2d 543 , affd 62 NY2d 681 ) or uncontradicted evidence from disinterested witnesses prove that the person to whom the car had been entrusted had exceeded his authority (see, Capalario v Murray, 52 AD2d 1037).

1987Therefore, the fact patterns where the rebuttal of the presumption has been held sufficiently strong to warrant summary judgment or a directed verdict have generally been where the uncontrovertible proof established that the driver had stolen the vehicle (see, Albouyeh v County of Suffolk, 96 AD2d 543 , affd 62 NY2d 681 ) or uncontradicted evidence from disinterested witnesses prove that the person to whom the car had been entrusted had exceeded his authority (see, Capalario v Murray, 52 AD2d 1037).

1987Therefore, the fact patterns where the rebuttal of the presumption has been held sufficiently strong to warrant summary judgment or a directed verdict have generally been where the uncontrovertible proof established that the driver had stolen the vehicle (see, Albouyeh v County of Suffolk, 96 AD2d 543 , affd 62 NY2d 681 ) or uncontradicted evidence from disinterested witnesses prove that the person to whom the car had been entrusted had exceeded his authority (see, Capalario v Murray, 52 AD2d 1037).

1986(People v Knox, 87 AD2d 504 [1st Dept 1982]; see, Sandstrom v Montana, 442 US 510 .) The rebuttal of the presumption and the concomitant absence of intent to use the weapon unlawfully does not render the possession of it lawful; it merely reduces the crime from the second to the third degree.

1986The rebuttal of the presumption of concurrent jurisdiction must be by "an explicit statutory direction, by unmistakable implication from legislative history, or by a clear incompatibility between state-court jurisdiction and federal interests.” (Gulf Offshore Co. v Mobil Oil Corp., 453 US 473, 478 , supra.) In Greenview Trading Co. v Hershman & Leicher ( 123 Misc 2d 152 [Sup Ct, NY County 1984]), Justice Saxe helpfully enumerated a number of examples wherein it had been held that State courts have concurrent jurisdiction to hear claims arising under various Federal statutes wherein such statut

1986(See, 123 Misc 2d 152, 155-156 .) This is precisely the situation which prevails under the Consumer Product Safety Act here in issue.

1986The rebuttal of the presumption of concurrent jurisdiction must be by "an explicit statutory direction, by unmistakable implication from legislative history, or by a clear incompatibility between state-court jurisdiction and federal interests.” (Gulf Offshore Co. v Mobil Oil Corp., 453 US 473, 478 , supra.) In Greenview Trading Co. v Hershman & Leicher ( 123 Misc 2d 152 [Sup Ct, NY County 1984]), Justice Saxe helpfully enumerated a number of examples wherein it had been held that State courts have concurrent jurisdiction to hear claims arising under various Federal statutes wherein such statut

1969Co., 24 Misc 2d 765 ), and that the proof of ownership of a motor vehicle creates a rebuttal presumption that the driver was using the vehicle with the owner’s permission (Leotta v. Plessinger, 8 N Y 2d 449, 461; Reyes v. Sternberg, 27 A D 2d 828; Brindley v. Krizsan, 18 A D 2d 971).

1960As early as 1895 the court in Dinley v. McCullagh ( 92 Hun 454 ) held as follows: “ But the rule thus invoked [presumption of consideration] has its limitations, and very slight circumstances will serve to repel any presumption thus created * * * the fact that the check was signed more than a month prior to the death of the intestate, and was not presented at the bank until several months after her death, is sufficient to justify the trial court in concluding that it was not received in the usual course of business and for a valuable consideration.” Returning to the case at hand, there is pres

1950No vested right obtained to the absence of that rule (People v. Turner, 117 N. Y. 227 ; Preston Co. v. Funkhouser, 261 N. Y. 140, 144 ), and no restrictions are laid upon the rebuttal of the presumption arising from its application.

1950No vested right obtained to the absence of that rule (People v. Turner, 117 N. Y. 227 ; Preston Co. v. Funkhouser, 261 N. Y. 140, 144 ), and no restrictions are laid upon the rebuttal of the presumption arising from its application.

1913In People v. Plath, 100 N. Y. 590 , the court quotes with approval from Roscoe’s Criminal Evidence, 122, as follows: “ That there should be some fact deposed to, independently altogether of the evidence of the accomplice, which taken by itself leads, to the inference not only that a crime has been committed but that the prisoner is implicated in it.” Following this rule, and taking all the evidence be fore the grand jury except that of Savage the accomplice, it in no way indicates or tends to indicate that any crime has been committed, nor does it indicate that the defendant was implicated or