error violation in New York

2012Contrary to defendant’s argument, the principle set forth in People v Havelka ( 45 NY2d 636 [1978]) does not preclude a reopened hearing. “[T]here is no claim here that the People’s proof at the suppression hearing was insufficient; the claim was that there was an error at the hearing — that, because of the nondisclosure of Brady material, defendant did not have a fair chance to refute the People’s case” (People v Williams, 7 NY3d 15, 21 [2006]).

2012Contrary to defendant’s argument, the principle set forth in People v Havelka ( 45 NY2d 636 [1978]) does not preclude a reopened hearing. “[T]here is no claim here that the People’s proof at the suppression hearing was insufficient; the claim was that there was an error at the hearing — that, because of the nondisclosure of Brady material, defendant did not have a fair chance to refute the People’s case” (People v Williams, 7 NY3d 15, 21 [2006]).

1996Nevertheless, were we to consider the merits, we would find this claim to be unpersuasive given that the misbehavior report adequately described the misconduct with which petitioner was charged, the error in rule number was corrected during the course of the hearing and petitioner failed to demonstrate that he was prejudiced in his defense by this error (see, Matter of Hight v Coughlin, 161 AD2d 1079 ).

1995The court failed to instruct the jury that a finding of not guilty by reason of justification (see, Penal Law § 35.05 [2]) on the count of manslaughter in the second degree would preclude a verdict of guilty with regard to the lesser-included offense of criminally negligent homicide, and that the jurors were only to consider the lesser offense if they found the defendant not guilty of the greater offense for a reason other than justification (see, People v Higgins, 188 AD2d 839 ; People v Albergo, 181 AD2d 683 ; People v Castro, 131 AD2d 771 ; see also, People v Miller, 146 Misc 2d 16 ).

1995The court failed to instruct the jury that a finding of not guilty by reason of justification (see, Penal Law § 35.05 [2]) on the count of manslaughter in the second degree would preclude a verdict of guilty with regard to the lesser-included offense of criminally negligent homicide, and that the jurors were only to consider the lesser offense if they found the defendant not guilty of the greater offense for a reason other than justification (see, People v Higgins, 188 AD2d 839 ; People v Albergo, 181 AD2d 683 ; People v Castro, 131 AD2d 771 ; see also, People v Miller, 146 Misc 2d 16 ).

1995The court failed to instruct the jury that a finding of not guilty by reason of justification (see, Penal Law § 35.05 [2]) on the count of manslaughter in the second degree would preclude a verdict of guilty with regard to the lesser-included offense of criminally negligent homicide, and that the jurors were only to consider the lesser offense if they found the defendant not guilty of the greater offense for a reason other than justification (see, People v Higgins, 188 AD2d 839 ; People v Albergo, 181 AD2d 683 ; People v Castro, 131 AD2d 771 ; see also, People v Miller, 146 Misc 2d 16 ).

1986Inasmuch as it was "independently admissible to impeach the witness” (People v Schwartzman, 24 NY2d 241, 245 , cert denied 396 US 846 ), the subject evidence was properly introduced.

1986Inasmuch as it was "independently admissible to impeach the witness” (People v Schwartzman, 24 NY2d 241, 245 , cert denied 396 US 846 ), the subject evidence was properly introduced.

1986It was not an error for defense counsel to fail to request consideration of manslaughter in the second degree, since, in light of the evidence indicating intent, no reasonable view of the evidence would support a finding that the defendant acted recklessly (see, People v Glover, 57 NY2d 61 ).

1985Failure to timely object to an error when the error, if one exists, could be cured, is a waiver of that objection (see, 4 Weinstein-Korn-Miller, NY Civ Prac j[ 4017.03; cf. Isaacson v Karpe, 84 AD2d 868 ).

1985In light of the evidence offered in support of the justification defense as hereinafter set forth, it is my view that it cannot be said that there was such overwhelming evidence of guilt that an error in the instruction on justification was harmless (cf. People v Swinson, 111 AD2d 275 ).

1885But it has been frequently held that if an error in principle appears in the report of such commissioners the report will not be confirmed (Matter of Furman Street, 17 Wend., 663 , remarles of Bronson, J., pp. 663, 664; Matter of Central Park Extension, 16 Abb., 56 ; Matter of Comrs. of Cental Park, 51 Barb., 277 , and cases cited).