examination hearing in New York

2012The test to be applied has been formulated as follows: ‘Did the . . . judge receive information which, objectively considered, should reasonably have raised a doubt about defendant’s competency and alerted [the judge] to the possibility that the defendant could neither understand the proceedings or appreciate their significance, nor rationally aid his [or her] attorney in [the] defense’ ” (Arnold, 113 AD2d at 102-103 ).

2012The test to be applied has been formulated as follows: ‘Did the . . . judge receive information which, objectively considered, should reasonably have raised a doubt about defendant’s competency and alerted [the judge] to the possibility that the defendant could neither understand the proceedings or appreciate their significance, nor rationally aid his [or her] attorney in [the] defense’ ” (Arnold, 113 AD2d at 102-103 ).

1983CPL 690.05 (subd 2) authorizes, upon the issuance of a search warrant, the search of a person in order to seize designated property which, as defined in CPL 690.10 (subd 4), “[cjonstitutes evidence or tends to demonstrate * * * that a particular person participated in the commission of an offense.” In Matter of Barber v Rubin ( 72 AD2d 347, 352 ), a case which involved a court order to extract hairs from a defendant’s head, the court said, “Before an individual may be compelled to submit to an examination or a test of his body, the results of which may be used in the investigation or prosecuti

1981The Barber case held ( 72 AD2d 347, 352 , supra) that “Before an individual may be compelled to submit to an examination or a test of his body, the results of which may be used in the investigation or prosecution of a criminal offense, probable cause for the necessity of the procedure proposed must be demonstrated”.

1998The court’s examination of the defense expert was not so excessive as to warrant reversal (see, People v Moulton, 43 NY2d 944 ).

1997The trial court’s intervention and comments during the examination of a defense alibi witness did not deprive the defendant of a fair trial (see, People v Moulton, 43 NY2d 944 ; People v De Jesus, 42 NY2d 519 ; People v Harrison, 151 AD2d 778 ; People v Vargas, 150 AD2d 513 ).

1994An examination of the hearing testimony, as well as the lineup photograph, reveals that the lineup stand-ins were similar to the defendant in terms of hair style, facial hair, skin coloring, and dress, precluding the likelihood that the defendant was singled out for identification (see, Neil v Biggers, 409 US 188 ).

1990Moreover, an examination of the lineup photograph entirely confirms the hearing testimony precluding the likelihood that the defendant was singled out for identification (see, Neil v Biggers, 409 US 188 ).

1987Accordingly, upon defendant’s motion for a new examination and hearing, although not obligated to do so by the statute then in force, the court should have conducted such a hearing (see, Pate v Robinson, 383 US 375 ; People v Harris, supra, at 355 ) prior to sentencing solely to determine if defendant was fit to proceed at that time.

1985In determining whether a trial court should have invoked the procedures of CPL article 730 and directed an examination and hearing on defendant’s competency, the focus is on what the trial court did in light of what it knew or should have known of the defendant at any time before final judgment (see, Pate v Robinson, 383 US 375, 385 , supra; People v Armlin, supra, p 171 ; People v Harris, 109 AD2d 351, 355 , supra; see also, Hance v Zant, 696 F2d 940, 948, cert denied 463 US 1210 ; Lokos v Capps, 625 F2d 1258, 1261; Reese v Wainwright, 600 F2d 1085, 1093, cert denied 444 US 983 ).

1987Accordingly, upon defendant’s motion for a new examination and hearing, although not obligated to do so by the statute then in force, the court should have conducted such a hearing (see, Pate v Robinson, 383 US 375 ; People v Harris, supra, at 355 ) prior to sentencing solely to determine if defendant was fit to proceed at that time.

1985In determining whether a trial court should have invoked the procedures of CPL article 730 and directed an examination and hearing on defendant’s competency, the focus is on what the trial court did in light of what it knew or should have known of the defendant at any time before final judgment (see, Pate v Robinson, 383 US 375, 385 , supra; People v Armlin, supra, p 171 ; People v Harris, 109 AD2d 351, 355 , supra; see also, Hance v Zant, 696 F2d 940, 948, cert denied 463 US 1210 ; Lokos v Capps, 625 F2d 1258, 1261; Reese v Wainwright, 600 F2d 1085, 1093, cert denied 444 US 983 ).

1959Furthermore, it has been the general rule of procedure that “ [w]hile an examination under rule 122 of the Rules of Civil Practice may be had to facilitate the accurate pleading of a known cause of action, it will not be allowed to enable plaintiff to ascertain whether facts exist sufficient to create a cause of action.” (Beikirch v. Loebs, 243 App. Div. 859 ; see, also, 5 Carmody-Wait, New York Practice, p. 404.) While under the circumstances herein the court is required to deny the application, it is not to be inferred therefrom that the plaintiff is not in possession of sufficient facts upo

1958As this court said in Beikirch v. Loebs ( 243 App. Div. 859 ): “ While an examination under rule 122 of the Rules of Civil Practice may be bad to facilitate the accurate pleading of a known cause of action, it will not be allowed to enable plaintiff to ascertain whether facte exist sufficient to create a cause of action.” (See, also, East v. Endicott Forging & Mfg.

1953Since affidavits by, or testimony of, electors may not be used (Matter of Hogan v. Supreme Court, 281 N. Y. 572 ), the remedy of a candidate, who deems himself aggrieved by such discrepancy shown on the canvass from the machine, is by an action to test the title to the office.

1940Since affidavits by, or testimony of, electors may not be used (Matter of Hogan v. Supreme Court, 281 N. Y. 572 ), the remedy of a candidate, who deems himself aggrieved by such a discrepancy shown on the canvass from the machine, is by an action to test the title to the office.

1944(Matter of Levy, 255 N. Y. 223 .) ” Another point is the subject of much emphasis in the argument by counsel for the petitioner.

1942(Matter of Levy, 255 N. Y. 223 .) The subpoenas, therefore, are in the proper exercise of. authority vested in the Commissioner and must be obeyed.

2018What custodial arrangement furthers the child's best interests involves the examination of factors such as the fitness, stability, past performance and home environment of each parent, as well as which parent is more capable of nurturing the child and fostering her relationship with the other parent ( see Matter of Emmanuel SS. v Thera SS. , 152 AD3d at 901 ; Matter of Paul LL. v Tanya LL. , 149 AD3d 1173, 1174 [2017]).

2018Finally, we are unpersuaded by defendant's contention that the failure to raise these objections at the suppression hearing and during the People's summation amounts to ineffective assistance of counsel, as an examination of defense counsel's performance, viewed in totality, reveals that defendant received meaningful representation ( see People v Abare , 86 AD3d 803, 805-806 [2011], lv denied 19 NY3d 861 [2012]; People v Elwood , 80 AD3d 988, 990 [2011], lv denied 16 NY3d 858 [2011]).

2010The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court’s determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed if supported by the record (see Matter of Luke v Luke, 72 AD3d 689 [2010]; Matter of Holder v Francis, 67 AD3d 679 [2009]; Matter of Sblendorio v D’Agostino, 60 AD3d 773 [2009]; Matter of Fernandez v Pacheco, 59 AD3d 542, 543 [2009]).

2010The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court’s determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed if supported by the record (see Matter of Luke v Luke, 72 AD3d 689 [2010]; Matter of Holder v Francis, 67 AD3d 679 [2009]; Matter of Sblendorio v D’Agostino, 60 AD3d 773 [2009]; Matter of Fernandez v Pacheco, 59 AD3d 542, 543 [2009]).

2010The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court’s determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed if supported by the record (see Matter of Luke v Luke, 72 AD3d 689 [2010]; Matter of Holder v Francis, 67 AD3d 679 [2009]; Matter of Sblendorio v D’Agostino, 60 AD3d 773 [2009]; Matter of Fernandez v Pacheco, 59 AD3d 542, 543 [2009]).

2010Although the three orders which dismissed the appellant’s petitions stated the dismissals were due to the appellant’s “failure to state a cause of action,” those orders also provided that the Family Court dismissed the appellant’s petitions following “an examination and inquiry into the facts and circumstances of the case, and after hearing the proofs and testimony offered in relation thereto.” Therefore, contrary to the appellant’s contentions, the Family Court was not required, inter alia, to accept the appellant’s allegations as true and determine whether the facts, as alleged, fit into a c

2008When a child of tender years is called as a witness, it becomes the duty of the trial judge to examine into the witness’s competency; a failure to conduct a preliminary examination is error (Kapuscinski v Kapuscinski, 75 AD2d 576 [2d Dept 1980]).

2008In civil actions, the usual rule is that a child may not testify unless under oath or pursuant to affirmation (Stoppick v Goldstein, 174 App Div 306 [2d Dept 1916]).

2006The verdict is not against the weight of the evidence (see People v Garcia, 17 AD3d 283 [2005], lv denied 5 NY3d 789 [2005]), and the sentence is not unduly harsh or severe.

2006The verdict is not against the weight of the evidence (see People v Garcia, 17 AD3d 283 [2005], lv denied 5 NY3d 789 [2005]), and the sentence is not unduly harsh or severe.

2006County Court properly exercised its discretion in limiting the examination of a defense witness concerning a collateral matter designed to impeach the complainant’s credibility (see People v Watson, 248 AD2d 737 [1998], lv denied 92 NY2d 863 [1998]; see generally Ingebretsen v Manha, 218 AD2d 784 [1995]).