remainder waiver in New York

2019Furthermore, we have frequently stated that "[a]ny nonwaivable issues purportedly encompassed by the waiver are excluded from the scope of the waiver [and] the remainder of the waiver is valid and enforceable' " ( People v Neal , 56 AD3d 1211 , 1211 [4th Dept 2008], lv denied 12 NY3d 761 [2009]; see People v Weatherbee , 147 AD3d 1526, 1526 [4th Dept 2017], lv denied 29 NY3d 1038 [2017]), and defendant does not contend that any of the unstated nonwaivable rights apply to this case.

2019Although we agree with defendant that the written waiver of the right to appeal contains improperly overbroad language concerning the rights that he waived, "[a]ny nonwaivable issues purportedly encompassed by the waiver are excluded from the scope of the waiver [and] the remainder of the waiver is valid and enforceable" ( People v Weatherbee , 147 AD3d 1526, 1526 [4th Dept 2017], lv denied 29 NY3d 1038 [2017] [internal quotation marks omitted]; see People v King , 151 AD3d 1651, 1652 [4th Dept 2017], lv denied 30 NY3d 951 [2017]).

2017“Any nonwaivable [rights] purportedly encompassed by the waiver ‘are excluded from the scope of the waiver [and] the remainder of the waiver is valid and enforceable’ ” (People v Neal, 56 AD3d 1211 , 1211 [2008], lv denied 12 NY3d 761 [2009]; see Williams, 132 AD3d at 1291).

2017“Any nonwaivable [rights] purportedly encompassed by the waiver ‘are excluded from the scope of the waiver [and] the remainder of the waiver is valid and enforceable’ ” (People v Neal, 56 AD3d 1211 , 1211 [2008], lv denied 12 NY3d 761 [2009]; see Williams, 132 AD3d at 1291).

2019Contrary to defendant's contention, "[a]ny nonwaivable issues purportedly encompassed by the waiver are excluded from the scope of the waiver [and] the remainder of the waiver is valid and enforceable' " ( People v Neal , 56 AD3d 1211 , 1211 [4th Dept 2008], lv denied 12 NY3d 761 [2009]; see People v Gibson , 147 AD3d 1507, 1508 [4th Dept 2017], lv denied 29 NY3d 1032 [2017]; People v Weatherbee , 147 AD3d 1526, 1526 [4th Dept 2017], lv denied 29 NY3d 1038 [2017]).

2017To the extent that defendant contends that the “written waiver of [the right to] appeal is unenforceable because it contained certain nonwaivable rights!, a]ny nonwaivable [rights] purportedly encompassed by the waiver are excluded from the scope of the waiver [and] the remainder of the waiver is valid and enforceable” (People v Williams, 132 AD3d 1291 , 1291 [2015], lv denied 26 NY3d 1151 [2016] [internal quotation marks omitted]; see People v Gibson, 147 AD3d 1507, 1508 [2017]; People v Mead, 133 AD3d 1257, 1258 [2015]).

2017Defendant’s valid waiver of the right to appeal encompasses his challenge to County Court’s suppression ruling (see People v Kemp, 94 NY2d 831, 833 [1999]; Williams, 132 AD3d at 1291; Weinstock, 129 AD3d at 1663 ).

2017Defendant’s valid waiver of the right to appeal encompasses his challenge to County Court’s suppression ruling (see People v Kemp, 94 NY2d 831, 833 [1999]; Williams, 132 AD3d at 1291; Weinstock, 129 AD3d at 1663 ).

2018Moreover, "[a]ny nonwaivable issues purportedly encompassed by the waiver are excluded from the scope of the waiver [and] the remainder of the waiver is valid and enforceable" ( People v Weatherbee , 147 AD3d 1526 , 1526 [4th Dept 2017], lv denied 29 NY3d 1038 [2017] [internal quotation marks omitted]; see People v Mead , 133 AD3d 1257, 1258 [4th Dept 2015]).

2017To the extent that defendant contends that the “written waiver of [the right to] appeal is unenforceable because it contained certain nonwaivable rights!, a]ny nonwaivable [rights] purportedly encompassed by the waiver are excluded from the scope of the waiver [and] the remainder of the waiver is valid and enforceable” (People v Williams, 132 AD3d 1291 , 1291 [2015], lv denied 26 NY3d 1151 [2016] [internal quotation marks omitted]; see People v Gibson, 147 AD3d 1507, 1508 [2017]; People v Mead, 133 AD3d 1257, 1258 [2015]).

2015“Any nonwaivable [rights] purportedly encompassed by the waiver ‘are excluded from the scope of the waiver [and] the remainder of the waiver is valid and enforceable’ ” (People v Neal, 56 AD3d 1211 , 1211 [2008], lv denied 12 NY3d 761 [2009]; see People v Henion, 110 AD3d 1349 , 1350 [2013], lv denied 22 NY3d 1088 [2014]; People v Gruber, 108 AD3d 877, 878 [2013], lv denied 22 NY3d 956 [2013]; People v Umber, 2 AD3d 1051, 1052 [2003], lv denied 2 NY3d 747 [2004]).

2015“Any nonwaivable [rights] purportedly encompassed by the waiver ‘are excluded from the scope of the waiver [and] the remainder of the waiver is valid and enforceable’ ” (People v Neal, 56 AD3d 1211 , 1211 [2008], lv denied 12 NY3d 761 [2009]; see People v Henion, 110 AD3d 1349 , 1350 [2013], lv denied 22 NY3d 1088 [2014]; People v Gruber, 108 AD3d 877, 878 [2013], lv denied 22 NY3d 956 [2013]; People v Umber, 2 AD3d 1051, 1052 [2003], lv denied 2 NY3d 747 [2004]).

2017Although the colloquy and the written waiver contain improperly overbroad language regarding the scope of the rights waived by defendant (see generally People v Callahan, 80 NY2d 273, 285 [1992]; People v Seaberg, 74 NY2d 1, 9 [1989]), “[a]ny nonwaivable issues purportedly encompassed by the waiver are excluded from the scope of the waiver [and] the remainder of the waiver is valid and enforceable” (Weatherbee, 147 AD3d at 1526 [internal quotation marks omitted]; see People v Henion, 110 AD3d 1349 , 1350 [2013], lv denied 22 NY3d 1088 [2014]; People v Pelaez, 100 AD3d 803 , 804 [2012], lv deni

2015“Any nonwaivable [rights] purportedly encompassed by the waiver ‘are excluded from the scope of the waiver [and] the remainder of the waiver is valid and enforceable’ ” (People v Neal, 56 AD3d 1211 , 1211 [2008], lv denied 12 NY3d 761 [2009]; see People v Henion, 110 AD3d 1349 , 1350 [2013], lv denied 22 NY3d 1088 [2014]; People v Gruber, 108 AD3d 877, 878 [2013], lv denied 22 NY3d 956 [2013]; People v Umber, 2 AD3d 1051, 1052 [2003], lv denied 2 NY3d 747 [2004]).

2021Although inmates have a fundamental right to be present during their prison disciplinary hearings, "a petitioner may be properly removed from the remainder of a hearing where, upon receiving adequate warning, he or she continues to be unduly disruptive" ( Matter of Rupnarine v Prack , 118 AD3d 1062, 1063 [3d Dept 2014]; see Matter of Jackson v Fischer , 59 AD3d 820, 820-821 [3d Dept 2009]; see generally Matter of Lashway v Irvin , 256 AD2d 1169, 1169 [4th Dept 1998]).

2014It is well established, however, that a petitioner may properly be removed from the remainder of a hearing where, upon receiving adequate warning, he or she continues to be unduly disruptive (see Matter of Canty v Fischer, 92 AD3d 1055, 1056 [2012], lv denied, 19 NY3d 802 [2012]; Matter of Jackson v Fischer, 59 AD3d 820, 820-821 [2009]; Matter of Applewhite v Goord, 49 AD3d 1046, 1047 [2008]).

2016Petitioner was repeatedly offered the opportunity to attend and informed that the hearing would proceed in his absence and, thus, his refusal constituted a waiver of his right to be present as well as any procedural challenges to the remainder of the hearing (see Matter of Hernandez v Fischer, 111 AD3d 1042, 1043 [2013]; Matter of Raqiyb v Fischer, 82 AD3d 1432, 1433-1434 [2011]).

2012Under the circumstances presented, we find no basis to disturb the Hearing Officer’s determination that petitioner waived his right to be present for the remainder of the hearing after being fully informed that it would be completed in his absence (see Matter of Raqiyb v Fischer, 82 AD3d 1432, 1433 [2011]; Matter of Abbas v Selsky, 22 AD3d 982, 983 [2005]; compare Matter of Alicea v Selsky, 31 AD3d 1080, 1080-1081 [2006]).

2014Inasmuch as the mother’s attorney “appeared at and participated in the hearing” until the mother left the courtroom, “there was no default” (Matter of Danielle M., 26 AD3d 748, 748 [2006], lv denied 7 NY3d 703 [2006]; see Thompson, 91 AD3d at 1328 ; Matter of Isaiah H., 61 AD3d 1372, 1373 [2009]).

2014Inasmuch as the mother’s attorney “appeared at and participated in the hearing” until the mother left the courtroom, “there was no default” (Matter of Danielle M., 26 AD3d 748, 748 [2006], lv denied 7 NY3d 703 [2006]; see Thompson, 91 AD3d at 1328 ; Matter of Isaiah H., 61 AD3d 1372, 1373 [2009]).

2015Defendant’s valid waiver of the right to appeal encompasses his challenge to Supreme Court’s suppression ruling (see People v Kemp, 94 NY2d 831, 833 [1999]; People v Braxton, 129 AD3d 1674, 1675 [2015]; People v Putnam, 50 AD3d 1514, 1514 [2008], lv denied 10 NY3d 963 [2008]).

2015Defendant’s valid waiver of the right to appeal encompasses his challenge to Supreme Court’s suppression ruling (see People v Kemp, 94 NY2d 831, 833 [1999]; People v Braxton, 129 AD3d 1674, 1675 [2015]; People v Putnam, 50 AD3d 1514, 1514 [2008], lv denied 10 NY3d 963 [2008]).

2019Defendant's valid waiver encompasses his challenge in his main brief to the severity of his sentence ( see Lopez , 6 NY3d at 255 ).

2019Defendant's valid waiver of the right to appeal forecloses review of his request that we exercise our interest of justice jurisdiction to adjudicate him a youthful offender ( see People v Torres , 110 AD3d 1119, 1119 [3d Dept 2013], lv denied 22 NY3d 1044 [2013]; see also People v Pacherille , 25 NY3d 1021, 1024 [2015]; see generally People v Lopez , 6 NY3d 248, 255 [2006]).

2019Defendant's valid waiver of the right to appeal forecloses review of his request that we exercise our interest of justice jurisdiction to adjudicate him a youthful offender ( see People v Torres , 110 AD3d 1119, 1119 [3d Dept 2013], lv denied 22 NY3d 1044 [2013]; see also People v Pacherille , 25 NY3d 1021, 1024 [2015]; see generally People v Lopez , 6 NY3d 248, 255 [2006]).

2018Defendant's valid waiver of the right to appeal "forecloses appellate review of [the] sentencing court's discretionary decision to deny youthful offender status" ( People v Pacherille , 25 NY3d 1021 , 1024 [2015]), even where, as here, there was no mention of youthful offender status during the plea colloquy.

2017Contrary to defendant’s contention, viewing the evidence in the light most favorable to the People, we conclude that the evidence is legally sufficient to support the conviction with respect to those counts (see generally People v Horton, 24 NY3d 985, 987 [2014]; People v Bleakley, 69 NY2d 490, 495 [1987]).

2017Contrary to defendant’s contention, viewing the evidence in the light most favorable to the People, we conclude that the evidence is legally sufficient to support the conviction with respect to those counts (see generally People v Horton, 24 NY3d 985, 987 [2014]; People v Bleakley, 69 NY2d 490, 495 [1987]).

2017Contrary to defendant’s contention, viewing the evidence in the light most favorable to the People, we conclude that the evidence is legally sufficient to support the conviction with respect to those counts (see generally People v Horton, 24 NY3d 985, 987 [2014]; People v Bleakley, 69 NY2d 490, 495 [1987]).

2017Contrary to defendant’s contention, viewing the evidence in the light most favorable to the People, we conclude that the evidence is legally sufficient to support the conviction with respect to those counts (see generally People v Horton, 24 NY3d 985, 987 [2014]; People v Bleakley, 69 NY2d 490, 495 [1987]).

2016Thus, we conclude that the order in appeal No. 1 was entered upon the father’s default, and it is well settled that no appeal lies from an order that is entered upon the default of the appealing party (see CPLR 5511; Matter of Li Wong v Fen Liu, 121 AD3d 692, 693 [2014]; Matter of Alexandria M. [Mattie M.], 108 AD3d 548 , 549 [2013]).

2016Thus, we conclude that the order in appeal No. 1 was entered upon the father’s default, and it is well settled that no appeal lies from an order that is entered upon the default of the appealing party (see CPLR 5511; Matter of Li Wong v Fen Liu, 121 AD3d 692, 693 [2014]; Matter of Alexandria M. [Mattie M.], 108 AD3d 548 , 549 [2013]).

2015“Any nonwaivable [rights] purportedly encompassed by the waiver ‘are excluded from the scope of the waiver [and] the remainder of the waiver is valid and enforceable’ ” (People v Neal, 56 AD3d 1211 , 1211 [2008], lv denied 12 NY3d 761 [2009]; see People v Henion, 110 AD3d 1349 , 1350 [2013], lv denied 22 NY3d 1088 [2014]; People v Gruber, 108 AD3d 877, 878 [2013], lv denied 22 NY3d 956 [2013]; People v Umber, 2 AD3d 1051, 1052 [2003], lv denied 2 NY3d 747 [2004]).

2015“Any nonwaivable [rights] purportedly encompassed by the waiver ‘are excluded from the scope of the waiver [and] the remainder of the waiver is valid and enforceable’ ” (People v Neal, 56 AD3d 1211 , 1211 [2008], lv denied 12 NY3d 761 [2009]; see People v Henion, 110 AD3d 1349 , 1350 [2013], lv denied 22 NY3d 1088 [2014]; People v Gruber, 108 AD3d 877, 878 [2013], lv denied 22 NY3d 956 [2013]; People v Umber, 2 AD3d 1051, 1052 [2003], lv denied 2 NY3d 747 [2004]).

2015We agree with defendant, however, that the waiver of the right to appeal does not encompass his challenge to the condition of probation that required him to sign a consent to waive his Fourth Amendment right protecting him from a search of his home on the ground that it is related to defendant’s “drug/ alcohol abuse,” inasmuch as that condition was not part of the plea agreement (see generally People v Leiser, 124 AD3d 1349, 1350 [2015]).

2015We agree with defendant, however, that the waiver of the right to appeal does not encompass his challenge to the condition of probation that required him to sign a consent to waive his Fourth Amendment right protecting him from a search of his home on the ground that it is related to defendant’s “drug/ alcohol abuse,” inasmuch as that condition was not part of the plea agreement (see generally People v Leiser, 124 AD3d 1349, 1350 [2015]).

2015Defendant’s valid waiver of the right to appeal encompasses his challenge to Supreme Court’s suppression ruling (see People v Kemp, 94 NY2d 831, 833 [1999]; People v Braxton, 129 AD3d 1674, 1675 [2015]; People v Putnam, 50 AD3d 1514, 1514 [2008], lv denied 10 NY3d 963 [2008]).

2015Defendant’s valid waiver of the right to appeal encompasses his challenge to Supreme Court’s suppression ruling (see People v Kemp, 94 NY2d 831, 833 [1999]; People v Braxton, 129 AD3d 1674, 1675 [2015]; People v Putnam, 50 AD3d 1514, 1514 [2008], lv denied 10 NY3d 963 [2008]).

2014Inasmuch as the mother’s attorney “appeared at and participated in the hearing” until the mother left the courtroom, “there was no default” (Matter of Danielle M., 26 AD3d 748, 748 [2006], lv denied 7 NY3d 703 [2006]; see Thompson, 91 AD3d at 1328 ; Matter of Isaiah H., 61 AD3d 1372, 1373 [2009]).

2014Inasmuch as the mother’s attorney “appeared at and participated in the hearing” until the mother left the courtroom, “there was no default” (Matter of Danielle M., 26 AD3d 748, 748 [2006], lv denied 7 NY3d 703 [2006]; see Thompson, 91 AD3d at 1328 ; Matter of Isaiah H., 61 AD3d 1372, 1373 [2009]).

2014Inasmuch as the mother’s attorney “appeared at and participated in the hearing” until the mother left the courtroom, “there was no default” (Matter of Danielle M., 26 AD3d 748, 748 [2006], lv denied 7 NY3d 703 [2006]; see Thompson, 91 AD3d at 1328 ; Matter of Isaiah H., 61 AD3d 1372, 1373 [2009]).

2014Inasmuch as the mother’s attorney “appeared at and participated in the hearing” until the mother left the courtroom, “there was no default” (Matter of Danielle M., 26 AD3d 748, 748 [2006], lv denied 7 NY3d 703 [2006]; see Thompson, 91 AD3d at 1328 ; Matter of Isaiah H., 61 AD3d 1372, 1373 [2009]).

2005Moreover, in light of petitioner’s argumentative and uncooperative behavior during the hearing, the record supports the Hearing Officer’s determination to remove him from the remainder of the hearing based on “correctional goals” (7 NYCRR 254.6 [a] [2]; see Matter of Polanco v Bennett, 6 AD3d 846, 846 [2004]; Matter of Beckles v Selsky, 273 AD2d 584, 585 [2000], lv denied 95 NY2d 764 [2000]).

2004Given petitioner’s argumentative and disruptive conduct during the hearing, we find no error in the Hearing Officer’s decision to exclude petitioner from the remainder of the hearing (see Matter of Beckles v Selsky, 273 AD2d 584, 585 [2000], lv denied 95 NY2d 764 [2000]).

2025The single employer doctrine imposes liability for violations of the NYSHRL and NYCHRL on entities that are part of a single enterprise (Moraetis v Evans, 150 AD3d 403,404 [1st Dept 2017]).

2025The single employer doctrine imposes liability for violations of the NYSHRL and NYCHRL on entities that are part of a single enterprise (Moraetis v Evans, 150 AD3d 403, 404 [1st Dept 2017]).

2019Furthermore, we have frequently stated that "[a]ny nonwaivable issues purportedly encompassed by the waiver are excluded from the scope of the waiver [and] the remainder of the waiver is valid and enforceable' " ( People v Neal , 56 AD3d 1211 , 1211 [4th Dept 2008], lv denied 12 NY3d 761 [2009]; see People v Weatherbee , 147 AD3d 1526, 1526 [4th Dept 2017], lv denied 29 NY3d 1038 [2017]), and defendant does not contend that any of the unstated nonwaivable rights apply to this case.

2019Although we agree with defendant that the written waiver of the right to appeal contains improperly overbroad language concerning the rights that he waived, "[a]ny nonwaivable issues purportedly encompassed by the waiver are excluded from the scope of the waiver [and] the remainder of the waiver is valid and enforceable" ( People v Weatherbee , 147 AD3d 1526, 1526 [4th Dept 2017], lv denied 29 NY3d 1038 [2017] [internal quotation marks omitted]; see People v King , 151 AD3d 1651, 1652 [4th Dept 2017], lv denied 30 NY3d 951 [2017]).

2021Although inmates have a fundamental right to be present during their prison disciplinary hearings, "a petitioner may be properly removed from the remainder of a hearing where, upon receiving adequate warning, he or she continues to be unduly disruptive" ( Matter of Rupnarine v Prack , 118 AD3d 1062, 1063 [3d Dept 2014]; see Matter of Jackson v Fischer , 59 AD3d 820, 820-821 [3d Dept 2009]; see generally Matter of Lashway v Irvin , 256 AD2d 1169, 1169 [4th Dept 1998]).

2017Under these circumstances, *1104 where petitioner persisted with obstructionist and argumentative conduct despite having been repeatedly and adequately warned that he would be removed from the hearing if such behavior continued, we discern no abuse of discretion in the decision to remove him from the remainder of the hearing (see Matter of Micolo v Annucci, 140 AD3d 1442, 1443 [2016]; Matter of Garcia v Prack, 128 AD3d 1244, 1245 [2015]; Matter of Toliver v New York State Dept. of Corr. & Community Supervision, 127 AD3d 1536, 1537 [2015]; Matter of Rupnarine v Prack, 118 AD3d at 1063 ).