defendant made claim in New York

1990Although the motion was denominated as one pursuant to CPL 440.10, the defendant made no claim or showing of prejudice because of the breach (see, Strickland v Washington, 466 US 688 ; People v Norris, 108 AD2d 760 ) and his motion is in fact a Montgomery application (see, People v Montgomery, 24 NY2d 130 ; see also, People v Corso, 40 NY2d 578 ; cf., People v Thomas, 47 NY2d 37 ) governed by CPL 460.30 (see, People v Corso, supra).

1990(Whiteley v Warden, 401 US 560 ; People v Jennings, 54 NY2d 518 .) The defendant made no challenge as to the reliability of the information received by the arresting officer.

1990Although the motion was denominated as one pursuant to CPL 440.10, the defendant made no claim or showing of prejudice because of the breach (see, Strickland v Washington, 466 US 688 ; People v Norris, 108 AD2d 760 ) and his motion is in fact a Montgomery application (see, People v Montgomery, 24 NY2d 130 ; see also, People v Corso, 40 NY2d 578 ; cf., People v Thomas, 47 NY2d 37 ) governed by CPL 460.30 (see, People v Corso, supra).

1990Although the motion was denominated as one pursuant to CPL 440.10, the defendant made no claim or showing of prejudice because of the breach (see, Strickland v Washington, 466 US 688 ; People v Norris, 108 AD2d 760 ) and his motion is in fact a Montgomery application (see, People v Montgomery, 24 NY2d 130 ; see also, People v Corso, 40 NY2d 578 ; cf., People v Thomas, 47 NY2d 37 ) governed by CPL 460.30 (see, People v Corso, supra).

1990(Whiteley v Warden, 401 US 560 ; People v Jennings, 54 NY2d 518 .) The defendant made no challenge as to the reliability of the information received by the arresting officer.

1989As was noted in Lewis , "evidence of uncharged crimes [is] not relevant in a prosecution for both forcible and statutory rape in which the defendants [have] not contended that the victims * * * consented to intercourse.” (Supra, 69 NY2d, at 327 ; see also, People v Tas, 51 NY2d 915 [evidence of uncharged crimes to establish force in the commission of first degree sodomy admissible only after the defendant claimed the acts charged to have been consensual].) It may be noted also that even if the uncharged crimes evidence had been admissible to prove the defendant’s use of force, its admission wo

1980We are aware that in People v Garrow ( 51 AD2d 814 ), where the defendant made a claim of ineffective assistance of counsel after testifying to two uncharged murders to support his insanity defense, the Third Department observed that "the strategy of putting defendant on the stand might be questioned by some [but], we cannot say that it was unreasonable to expect that he would buttress his defense of insanity by his testimony as to his past crimes and bizarre behavior.” Ultimately, Garrow differs significantly from the instant case.

1972(People v. Prior, 294 N. Y. 405 .) This case is not one involving a deliberate, intentional or systematic arbitrary and discriminatory exclusion from a Grand jury panel or array of people because of race, ethnic background, class status, or other discriminatory factor, so that the fact of exclusion itself is implied to be illegal and unconstitutional.

1951In Cowing v. Altman ( 71 N. Y. 435 ) the court in discussing the effect of the payment by a bank of a check fourteen months after the date appearing on the face thereof, stated at pages 440-441: ££ The claim by the defendant that the check was dishonored when it came to the possession of the bank, rests upon the fact that it was dated March 8,1871, about fourteen months before the time the bank received it.

1935The defendant made no claim that the coal on the premises was covered by the mortgage under foreclosure (Clinton Trust Co. v. 142-144 Joralemon Street Corp., 145 Misc. 475 ), but negotiated for its purchase.

1915The court there said, at pages. 853 and 854: “ It seems to us impossible to say that, under these circumstances, the retention by plaintiff of its own money, to which the defendant made no claim, established an accord and satisfaction as to a further sum of money as to which there arose a dispute after the payment of the amount admittedly due. ‘ The payment of an admitted liability is not a payment of or a consideration for an alleged accord and satisfaction.’ ” Citing Mance v. Hossington, 205 N. Y. 33, 36 .

1911The plaintiff, acting in her representative capacity, and John Doe might have been appointed administrator as well as the plaintiff, pleaded compliance with this condition of the policy, and this was admitted, so that as between the plaintiff in this action, representing the estate of Harry Smith, and the defendant, there was no issue in respect to the furnishing of the certificate of death, and such certificate was not necessary to establish her cause of action, which is quite a- different case from that of Brandt v. Public Bank ( 139 App. Div. 173 ), where the plaintiff, without qualificatio

1910Under the complaint, the contract could be used on the trial to determine the rights of the parties.' (Ha rtley v. Murtha, 5 App. Div. 408 , citing Hogan v. Laimbeer, 66 N.Y. 604 ; Shirk v. Brookfield, 77 App. Div. 299 ; Boyd v. Vale, 84 id. 416 .) I do not gather from the opening that the plaintiff abandoned his theory of action.

1910Under the complaint, the contract could be used on the trial to determine the rights of the parties.' (Ha rtley v. Murtha, 5 App. Div. 408 , citing Hogan v. Laimbeer, 66 N.Y. 604 ; Shirk v. Brookfield, 77 App. Div. 299 ; Boyd v. Vale, 84 id. 416 .) I do not gather from the opening that the plaintiff abandoned his theory of action.

1910In Lennon v. Smith ( 124 N.Y. 578 ) the contract contained a provision for a penalty for time delay, and the defendant made claim therefor; the court said that the defendant could not repudiate the contract and at the same time rest a claim for damages upon it for the reason that in such case the contract is permitted to remain operative for the remedy and relief of both parties, and that any other view might work injustice.

1871The objection was overruled upon the ground that it was; and it certainly was, as the performance of the written contract was essential to entitle the plaintiffs to recover the $300 that remained of the contract price, (Smith v. Brady, 17 N. Y. 173 ); and to show that it was only in that point of view that the whole of this inquiry was gone into, the defendant’s counsel stated that the defendant made no claim for damages for insufficient work, in that the evidence was offered only to show that the contract had not been fulfilled.