burden hearing in New York

2022The police testimony, and reasonable inferences to be drawn therefrom, were sufficient to satisfy the People's burden at the hearing of establishing the elements of a valid checkpoint stop ( see People v Dugan , 57 AD3d 300 [1st Dept 2008], lv denied 11 NY3d 924 [2009]).

2022The police testimony, and reasonable inferences to be drawn therefrom, were sufficient to satisfy the People's burden at the hearing of establishing the elements of a valid checkpoint stop ( see People v Dugan , 57 AD3d 300 [1st Dept 2008], lv denied 11 NY3d 924 [2009]).

2022The police testimony, and reasonable inferences to be drawn therefrom, were sufficient to satisfy the People's burden at the hearing of establishing the elements of a valid checkpoint stop ( see People v Dugan , 57 AD3d 300 [1st Dept 2008], lv denied 11 NY3d 924 [2009]).

2022The police testimony, and reasonable inferences to be drawn therefrom, were sufficient to satisfy the People's burden at the hearing of establishing the elements of a valid checkpoint stop ( see People v Dugan , 57 AD3d 300 [1st Dept 2008], lv denied 11 NY3d 924 [2009]).

2022The testimony established that the primary purpose of the checkpoint was vehicular safety and enforcement of vehicular laws and regulations rather than general crime control, that the checkpoint was effective in advancing those interests, that the checkpoint and its primary purpose originated at a higher police supervisory level than the officers at the scene, and that the degree of intrusion on drivers' liberty and privacy interests was minimal ( see Indianapolis v Edmond , 531 US 32 [2000]; People v Scott , 63 NY2d 518 [1984]).

2022The testimony established that the primary purpose of the checkpoint was vehicular safety and enforcement of vehicular laws and regulations rather than general crime control, that the checkpoint was effective in advancing those interests, that the checkpoint and its primary purpose originated at a higher police supervisory level than the officers at the scene, and that the degree of intrusion on drivers' liberty and privacy interests was minimal ( see Indianapolis v Edmond , 531 US 32 [2000]; People v Scott , 63 NY2d 518 [1984]).

2022The testimony established that the primary purpose of the checkpoint was vehicular safety and enforcement of vehicular laws and regulations rather than general crime control, that the checkpoint was effective in advancing those interests, that the checkpoint and its primary purpose originated at a higher police supervisory level than the officers at the scene, and that the degree of intrusion on drivers' liberty and privacy interests was minimal ( see Indianapolis v Edmond , 531 US 32 [2000]; People v Scott , 63 NY2d 518 [1984]).

2022The testimony established that the primary purpose of the checkpoint was vehicular safety and enforcement of vehicular laws and regulations rather than general crime control, that the checkpoint was effective in advancing those interests, that the checkpoint and its primary purpose originated at a higher police supervisory level than the officers at the scene, and that the degree of intrusion on drivers' liberty and privacy interests was minimal ( see Indianapolis v Edmond , 531 US 32 [2000]; People v Scott , 63 NY2d 518 [1984]).

2021However, the Appellate Division disagreed with the suppression court’s finding that the key alone was sufficient to show a legitimate expectation of privacy, explaining “having made sufficient factual allegations to get a hearing, defendant still had the burden at that hearing of ‘establishing standing by - 13 - - 14 - No. 56 demonstrating a legitimate expectation of privacy’” ( 252 AD2d 401, 402 [1998] [quoting People v Wesley, 73 NY2d 351 (1989)]; see also Ortiz, 83 NY2d 840 [1994] [finding no privacy interest in the apartment even after an evidentiary hearing]; People v Ponder, 54 NY2d 160,

1998That is, having made sufficient factual allegations to get to a hearing, defendant still had the burden at that hearing of “establishing standing by demonstrating a personal legitimate expectation of privacy (People v Wesley, 73 NY2d 351 )” (People v Whitfield, 81 NY2d 904, 906 ; see also, People v Delgado, 204 AD2d 242 , lv denied 84 NY2d 825 ).

2020It is the plaintiff that bears the burden at the hearing to establish by a preponderance of the evidence that personal jurisdiction was acquired over the defendant ( see Aurora Loan Servs., LLC v Gaines , 104 AD3d 885 , 886).

2015Where a court determines that a defendant rebutted the presumption of service, which is ordinarily established through a process server’s affidavit of service, and sets the matter down for a hearing, the burden at the hearing is on the plaintiff to establish by a preponderance of the evidence that personal jurisdiction was acquired over the defendant (see Aurora Loan Servs., LLC v Gaines, 104 AD3d 885 , 886 [2013]; Gray v Giannikios, 90 AD3d 836, 837 [2011]; Engel v Boymelgreen, 80 AD3d 653, 655 [2011]; Goralski v Nadzan, 89 AD3d 801, 801 [2011]).

2023Stated differently, petitioner bore the burden at the hearing and the determination must be upheld if “there is substantial evidence in the record to support the determination of the Tax Appeals Tribunal imposing personal liability on petitioner pursuant to Tax Law § 685 (g)” (Matter of Menik, 280 AD2d at 703 ).

2022Without information regarding the off-the-record communication between the mother and her counsel, it is impossible for this Court to determine whether the mother has a viable claim for ineffective assistance of counsel ( see Matter of Commissioner of Social Servs. of Rennsselaer County , 11 AD3d 750, 753 ).

2022In this case, the mother submitted an affidavit alleging that, prior to entering her admission to permanent neglect, counsel failed to inform her of the burden and standard of proof at trial and that she made the admission "because [she] was advised that it was necessary in order to have [her] children returned." She further alleged that she "would not have made the statements that [she] made to the court if [she] had been fully advised of [her] rights." The Family Court did not ameliorate these purported deficiencies in its colloquy with the mother, and also omitted any reference to the possi

2022In this case, the mother submitted an affidavit alleging that, prior to entering her admission to permanent neglect, counsel failed to inform her of the burden and standard of proof at trial and that she made the admission "because [she] was advised that it was necessary in order to have [her] children returned." She further alleged that she "would not have made the statements that [she] made to the court if [she] had been fully advised of [her] rights." The Family Court did not ameliorate these purported deficiencies in its colloquy with the mother, and also omitted any reference to the possi

2020Indeed, the Court of Appeals in Matter of Aronson v Power ( 22 NY2d 759 [1968]) reversed this Court's holding that the petitioner did not shift the burden on a claim of fraud ( Matter of Aronson v Power , 30 AD2d 651 [1st Dept 1968]), even though the petitioner was unable to secure the testimony of material witnesses.

2020Indeed, the Court of Appeals in Matter of Aronson v Power ( 22 NY2d 759 [1968]) reversed this Court's holding that the petitioner did not shift the burden on a claim of fraud ( Matter of Aronson v Power , 30 AD2d 651 [1st Dept 1968]), even though the petitioner was unable to secure the testimony of material witnesses.

2020Indeed, the Court of Appeals in Matter of Aronson v Power ( 22 NY2d 759 [1968]) reversed this Court's holding that the petitioner did not shift the burden on a claim of fraud ( Matter of Aronson v Power , 30 AD2d 651 [1st Dept 1968]), even though the petitioner was unable to secure the testimony of material witnesses.

2020Indeed, the Court of Appeals in Matter of Aronson v Power ( 22 NY2d 759 [1968]) reversed this Court's holding that the petitioner did not shift the burden on a claim of fraud ( Matter of Aronson v Power , 30 AD2d 651 [1st Dept 1968]), even though the petitioner was unable to secure the testimony of material witnesses.

2019"Mindful of the burden this rule imposes on busy and calendar-conscious trial courts, they are to be afforded considerable latitude in stating the requisite advice" ( id. at 197 ).

2019A defendant seeking to vacate a plea based on this defect must demonstrate that there is a "reasonable probability" that he or she would not have pleaded guilty and would instead have gone to trial had the court warned of the possibility of deportation ( id. at 176 ).