statutory or constitutional privilege in New York

2024"The ultimate burden of proving a basis for personal jurisdiction rests with the party asserting jurisdiction" ( Fanelli v Latman , 202 AD3d 758, 759 ).

2024If either the statutory or constitutional requirement is lacking, then the action may not proceed ( see id. ).

2001The Trial Judge ‘must have the power at all times to keep the prisoner within sight of the court, the jury, the counsel and the witnesses’ * * * [T]he refusal of the trial court to grant the motion of the defendant to remain outside the courtroom was not an abuse of discretion, or a denial of a statutory or constitutional privilege.” ( 309 NY at 314 .) The Winship principle is set out in Matter of Johnson v Torres ( 259 AD2d 370 [1st Dept 1999]) and is applied in People v Modzelewski ( 203 AD2d 594, 595 [2d Dept], lv denied 83 NY2d 969 [1994]; People v Lundquist, 151 AD2d 505 , 507 [2d Dept],

2001The Trial Judge ‘must have the power at all times to keep the prisoner within sight of the court, the jury, the counsel and the witnesses’ * * * [T]he refusal of the trial court to grant the motion of the defendant to remain outside the courtroom was not an abuse of discretion, or a denial of a statutory or constitutional privilege.” ( 309 NY at 314 .) The Winship principle is set out in Matter of Johnson v Torres ( 259 AD2d 370 [1st Dept 1999]) and is applied in People v Modzelewski ( 203 AD2d 594, 595 [2d Dept], lv denied 83 NY2d 969 [1994]; People v Lundquist, 151 AD2d 505 , 507 [2d Dept],

2001Petitioner has not established that the denial of his application was affected by a statutory or constitutional violation (see, Matter of Rossney v Pataki, 239 AD2d 632 ) and, accordingly, we decline to disturb the determination that petitioner was ineligible to participate in the temporary release program.

2001The Trial Judge ‘must have the power at all times to keep the prisoner within sight of the court, the jury, the counsel and the witnesses’ * * * [T]he refusal of the trial court to grant the motion of the defendant to remain outside the courtroom was not an abuse of discretion, or a denial of a statutory or constitutional privilege.” ( 309 NY at 314 .) The Winship principle is set out in Matter of Johnson v Torres ( 259 AD2d 370 [1st Dept 1999]) and is applied in People v Modzelewski ( 203 AD2d 594, 595 [2d Dept], lv denied 83 NY2d 969 [1994]; People v Lundquist, 151 AD2d 505 , 507 [2d Dept],

2001The Trial Judge ‘must have the power at all times to keep the prisoner within sight of the court, the jury, the counsel and the witnesses’ * * * [T]he refusal of the trial court to grant the motion of the defendant to remain outside the courtroom was not an abuse of discretion, or a denial of a statutory or constitutional privilege.” ( 309 NY at 314 .) The Winship principle is set out in Matter of Johnson v Torres ( 259 AD2d 370 [1st Dept 1999]) and is applied in People v Modzelewski ( 203 AD2d 594, 595 [2d Dept], lv denied 83 NY2d 969 [1994]; People v Lundquist, 151 AD2d 505 , 507 [2d Dept],

1998A count alleging a continuous crime may charge multiple acts spanning a period of time without violating the statutory or constitutional bar against duplicity (People v First Meridian Planning Corp., 86 NY2d 608, 615-616 ; People v Shack, 86 NY2d 529, 540).

1998Participation in a temporary release program is a privilege (see, Matter of Bruno v Recore, 227 AD2d 709 ) and an administrative determination denying that privilege will not be disturbed in the absence of a showing that it is in violation of a statutory or constitutional requirement or evidences “irrationality bordering on impropriety” (Matter of Gonzalez v Wilson, 106 AD2d 386, 387 ).

1998Participation in a temporary release program is a privilege (see, Matter of Bruno v Recore, 227 AD2d 709 ) and an administrative determination denying that privilege will not be disturbed in the absence of a showing that it is in violation of a statutory or constitutional requirement or evidences “irrationality bordering on impropriety” (Matter of Gonzalez v Wilson, 106 AD2d 386, 387 ).

1988Nevertheless, we have exercised our discretion in the interest of justice (see, CPL 470.15 [3] [c]; People v Robinson, 36 NY2d 224, 228 , remittitur amended 37 NY2d 784 ) and reviewed the challenged instructions.

1988Since defendant failed to preserve such issue for appellate review (see, CPL 470.05 [2]; People v Patterson, 39 NY2d 288, 294 , affd 432 US 197 ), and since the charge as given does not fall within the narrow statutory or constitutional exception allowing appellate review (see, People v Thomas, 50 NY2d 467, 471 ), no appeal lies.

1988Nevertheless, we have exercised our discretion in the interest of justice (see, CPL 470.15 [3] [c]; People v Robinson, 36 NY2d 224, 228 , remittitur amended 37 NY2d 784 ) and reviewed the challenged instructions.

1988Since defendant failed to preserve such issue for appellate review (see, CPL 470.05 [2]; People v Patterson, 39 NY2d 288, 294 , affd 432 US 197 ), and since the charge as given does not fall within the narrow statutory or constitutional exception allowing appellate review (see, People v Thomas, 50 NY2d 467, 471 ), no appeal lies.

1988Since defendant failed to preserve such issue for appellate review (see, CPL 470.05 [2]; People v Patterson, 39 NY2d 288, 294 , affd 432 US 197 ), and since the charge as given does not fall within the narrow statutory or constitutional exception allowing appellate review (see, People v Thomas, 50 NY2d 467, 471 ), no appeal lies.

1981In California Human Resources Dept. v Java ( 402 US 121 ) where relief was sought under the same statute, the delay alleged was the administrative practice of discontinuing benefits whenever an employer appealed, a practice which the court found to be in conflict with the statute’s mandate that compensation be paid “when due” (see, also, Matter of Cisco v Lavine, 72 Misc 2d 1009 [delay in conducting fair hearings on applications for AFDC benefits beyond the 60-day period mandated by Federal as well as State regulations]).

1981In California Human Resources Dept. v Java ( 402 US 121 ) where relief was sought under the same statute, the delay alleged was the administrative practice of discontinuing benefits whenever an employer appealed, a practice which the court found to be in conflict with the statute’s mandate that compensation be paid “when due” (see, also, Matter of Cisco v Lavine, 72 Misc 2d 1009 [delay in conducting fair hearings on applications for AFDC benefits beyond the 60-day period mandated by Federal as well as State regulations]).

1955The Trial Judge ‘ ‘ must have the power at all times to keep the prisoner within sight of the court, the jury, the counsel and the witnesses.” (People v. Gardner, 144 N. Y. 119, 128 .) Therefore, the refusal of the trial court to grant the motion of the defendant to remain outside the courtroom was not an abuse of discretion, or a denial of a statutory or constitutional privilege.