matter remanded hearing in New York

2020A defense attorney's performance is deficient as a matter of law where he or she fails to accurately advise a client of the risk of deportation ( see Padilla v Kentucky , 559 US 356, 367-74 [2010]).

2019Defendant did not fully substantiate his claim that his counsel provided constitutionally deficient advice regarding the immigration consequences of defendant's guilty plea ( see Padilla v Kentucky , 559 US 356, 367-369 [2010]; People v McDonald , 1 NY3d 109, 113-114 [2003]; People v Doumbia , 153 AD3d 1139, 1140 [1st Dept 2017]), and, as such, a hearing on that issue is required ( see CPL 440.30[3][c]).

2014The court erred in summarily denying defendant’s motion to suppress identification testimony as the product of an arrest without probable cause (see People v Mendoza, 82 NY2d 415 [1993]; People v Rivera, 42 AD3d 160 [1st Dept 2007]).

2007It is now firmly established that it is unreasonable to construe the Criminal Procedure Law as requiring precise factual averments from the defendant where the defendant does not have access to or awareness of the facts necessary to support suppression (see People v Mendoza, 82 NY2d 415, 429 [1993]).

2023As relevant here, CPL 440.30(4)(d) permits summary denial of a CPL article 440 motion when allegations of fact essential to support the motion are contradicted by a court record or made solely by defendant and are unsupported by any other affidavit or evidence, and there is no "reasonable possibility" that such allegations are true (CPL 440.30[4][d]; see People v George , 183 AD3d 436, 437 [1st Dept 2020]).

2023As relevant here, CPL 440.30(4)(d) permits summary denial of a CPL article 440 motion when allegations of fact essential to support the motion are contradicted by a court record or made solely by defendant and are unsupported by any other affidavit or evidence, and there is no "reasonable possibility" that such allegations are true (CPL 440.30[4][d]; see People v George , 183 AD3d 436, 437 [1st Dept 2020]).

2019Defendant did not fully substantiate his claim that his counsel provided constitutionally deficient advice regarding the immigration consequences of defendant's guilty plea ( see Padilla v Kentucky , 559 US 356, 367-369 [2010]; People v McDonald , 1 NY3d 109, 113-114 [2003]; People v Doumbia , 153 AD3d 1139, 1140 [1st Dept 2017]), and, as such, a hearing on that issue is required ( see CPL 440.30[3][c]).

2018The court improvidently exercised its discretion in summarily granting, without holding a hearing, defendant's motion seeking to vacate of the judgment on the ground that, with respect to the immigration consequences of his guilty plea, his counsel failed to advise him ( see Padilla v Kentucky , 559 US 356, 367-369 [2010]), or misadvised him (see People v McDonald , 1 NY3d 109, 113-14 [2003]).

2014Although no shares in respondent Wales Development, Inc. were ever issued, petitioner established prima facie that he was the owner of a 50% interest in Wales — and therefore had standing to petition for the corporation’s dissolution (see Business Corporation Law § 1104 [a]) — by submitting evidence of an agreement between himself and respondent Gomez that he owned 50% of the corporation (see United States Radiator Corp. v State of New York, 208 NY 144, 149-150 [1913]; Matter of Bhanji v Baluch, 99 AD3d 587 [1st Dept 2012]; Matter of M.

2014Although no shares in respondent Wales Development, Inc. were ever issued, petitioner established prima facie that he was the owner of a 50% interest in Wales — and therefore had standing to petition for the corporation’s dissolution (see Business Corporation Law § 1104 [a]) — by submitting evidence of an agreement between himself and respondent Gomez that he owned 50% of the corporation (see United States Radiator Corp. v State of New York, 208 NY 144, 149-150 [1913]; Matter of Bhanji v Baluch, 99 AD3d 587 [1st Dept 2012]; Matter of M.

2013Petitioner’s exclusion from the administrative hearing during the testimony of the only eyewitness to her alleged hitting of a student—the student himself—violated her constitutional right to confront the witnesses against her (see Matter of Daniel Aaron D., 49 NY2d 788, 791 [1980]).

2013Petitioner’s exclusion from the administrative hearing during the testimony of the only eyewitness to her alleged hitting of a student—the student himself—violated her constitutional right to confront the witnesses against her (see Matter of Daniel Aaron D., 49 NY2d 788, 791 [1980]).

2019Modification of custody or visitation, even on a temporary basis, requires a hearing, absent a showing of an emergency ( see Matter of Kenneth J. v Lesley B. , 165 AD3d 439 , 439-440 [1st Dept 2018]; Matter of Lela G. v Shoshanah B. , 151 AD3d 593, 594 [1st Dept 2017]).

2019The mother's allegations that the father had been making baseless accusations that she was subjecting the child to sexual abuse constituted a change in circumstances sufficient to warrant a hearing to determine if modification of the parties' visitation schedule would be in the child's best interest ( see Fargasch v Alves , 116 AD3d 774, 775-776 [2d Dept 2014]; see also Mildred S.G. v Mark G. , 62 AD3d 460, 461 [1st Dept 2009]).

2019Defendant did not fully substantiate his claim that his counsel provided constitutionally deficient advice regarding the immigration consequences of defendant's guilty plea ( see Padilla v Kentucky , 559 US 356, 367-369 [2010]; People v McDonald , 1 NY3d 109, 113-114 [2003]; People v Doumbia , 153 AD3d 1139, 1140 [1st Dept 2017]), and, as such, a hearing on that issue is required ( see CPL 440.30[3][c]).

2019The mother's allegations that the father had been making baseless accusations that she was subjecting the child to sexual abuse constituted a change in circumstances sufficient to warrant a hearing to determine if modification of the parties' visitation schedule would be in the child's best interest ( see Fargasch v Alves , 116 AD3d 774, 775-776 [2d Dept 2014]; see also Mildred S.G. v Mark G. , 62 AD3d 460, 461 [1st Dept 2009]).

2017Modification of custody or visitation, even on a temporary basis, requires a hearing, absent a showing of an emergency (see Shoshanah B. v Lela G., 140 AD3d 603, 606 [1st Dept 2016]; Matter of Martin R.G. v Ofelia G.O., 24 AD3d 305, 305-306 [1st Dept 2005]; Matter of Rodger W. v Samantha S., 95 AD3d 743, 743 [1st Dept 2012]).

2017Modification of custody or visitation, even on a temporary basis, requires a hearing, absent a showing of an emergency (see Shoshanah B. v Lela G., 140 AD3d 603, 606 [1st Dept 2016]; Matter of Martin R.G. v Ofelia G.O., 24 AD3d 305, 305-306 [1st Dept 2005]; Matter of Rodger W. v Samantha S., 95 AD3d 743, 743 [1st Dept 2012]).

2017Modification of custody or visitation, even on a temporary basis, requires a hearing, absent a showing of an emergency (see Shoshanah B. v Lela G., 140 AD3d 603, 606 [1st Dept 2016]; Matter of Martin R.G. v Ofelia G.O., 24 AD3d 305, 305-306 [1st Dept 2005]; Matter of Rodger W. v Samantha S., 95 AD3d 743, 743 [1st Dept 2012]).

2009The court erred in issuing a custody order without the benefit of a hearing, where the best interests of the parties’ son could be fully considered (see Matter of Linda J. v Nakisha P., 10 AD3d 287, 288 [2004]; Matter of Hudgins v Goodley, 301 AD2d 524 [2003]).

2009The plenary action, in which 50% owner Janet Chang alleged malfeasance against the successor temporary receiver, was properly dismissed because Chang had been denied leave of court to bring the action (see Copeland v Salomon, 56 NY2d 222, 228 [1982]; Collins v Vickers, 296 AD2d 320 [2002], lv denied 98 NY2d 615 [2002]), and was thus without legal capacity to file such a suit (CPLR 3211 [a] [3]).

2007While a court need not conduct a hearing where a change in custody is sought upon speculative and frivolous reasons (David W. v Julia W., 158 AD2d 1, 6-7 [1990]), here, a family offense petition was filed.

2007It was not an improvident exercise of the motion court’s discretion to permit defendants to amend their answer {see generally Peach Parking Corp. v 346 W. 40th St., LLC, 42 AD3d 82, 86 [2007]) by adding the defense of accord and satisfaction.

2007In this proceeding pursuant to Domestic Relations Law § 71 seeking postadoption visitation between siblings, the Family Court did not consider whether petitioner’s efforts to establish a relationship with his adopted sisters has been frustrated by their adoptive parents (cf. Matter of Emanuel S. v Joseph E., 78 NY2d 178, 182 [1991]), but merely deemed that there was an absence of an ongoing relationship between the siblings.