People v. Gregory
2018 NY Slip Op 05332
People v. Gregory
2018 NY Slip Op 05332
People v. Cunny
2018 NY Slip Op 05191
July 11, 2018
A Bronx Estate Litigation Lawyer said that, the defendant herein attacks the ‘pre-arraignment’ procedure now in effect in Bronx County by moving to dismiss the charges against him on the ground that he was subjected to an improper, unauthorized, and unconstitutional deprivation of his rights in being arraigned pursuant to such procedure. On August 2, 1973, at 6:30 P.M., the defendant was arrested and charged with violation of section 120.05 (assault in the second degree) and in a companion case arising from the same set of circumstances, 205.30 (resisting arrest) of the Penal Law. He was taken to Central Booking in the Bronx by the arrest officer and the booking procedure was completed by 8:15 P.M. While the defendant was held in the detention cell, the arresting officer and the complaining witness proceeded to the pre-arraignment room located on the second floor of the Bronx Criminal Court building at 161st Street and Third Avenue, in the County of Bronx. The accusatory instrument was drawn at 8:35 P.M., a written complaint was prepared and sworn to, and the Assistant District Attorney presumably made up his ‘fact sheet’. At this time, the arresting officer and his complainant were excused, and the defendant’s fingerprints were wired to Albany. The fingerprint record commonly known as the NYSIIS sheet was returned at 11:45 P.M., just as Night Court in the Bronx was closing. The case was set for arraignment the following morning before me. Neither the complainant nor the arresting officer was present. Arraignment without the presence of these parties was objected to by defense counsel and he made the motion herein and the matter was adjourned to allow the parties sufficient time to file memoranda on the legality of the procedure. In the interim, the defendant’s counsel moved to parole the defendant and he was so paroled, pending the resolution of this issue.
A Bronx Estate Lawyer said that, the pre-arraignment procedure so described has been in existence in Bronx County since October 1, 1969. It was promulgated by the Police Department with the approval of the District Attorney and the Appellate Division of the First Department with a view towards eliminating the necessity of the police officer’s and the complainant’s presence at the arraignment, thereby saving the police man-hours and likely inconvenience to the complainant. It is interesting to note that Bronx County, alone, continues this practice, although its implementation was attempted in Kings County and New York County. Article 78 proceedings were commenced in both counties, but the issues of constitutionality were never decided, because as a result of the institution of these actions, the procedure was discontinued in each instance and therefore, the said actions were discontinued.
Without conceding that the procedure so described accomplishes its aims, the defendant sets forth several contentions tending to support his claim that the implementation of the procedure is unlawful and violates his basic constitutional rights. Two of these contentions bear serious consideration. The others refer to criminal court and police procedures; are therefore administrative; and should not be the province of this court.
Assault means something very specific when it comes to torts and personal injury law. In tort law, an assault refers to an attempt or threat of violence – not actual violence itself. This may surprise people. But it’s one of the first things most American lawyers learned in law school.
A New York Criminal Lawyer said that, the best criminal defense of an Assault case depends on many factors. Regardless of where you are in New York, your criminal defense attorney should always pursue numerous legal angles. Is the Assault complaint/information against you legally sufficient? Has the complaint/information established a physical injury or substantial pain? Are there any witnesses or are there pictures or video of the incident? How has the evidence been preserved? Not an exhaustive list, the above questions are tremendously important ones that your criminal defense attorney needs to know when defending your Assault case.
It is also very important to understand as the accused the nuances between certain types or levels of Assault. For example, if you are charged with intentional Assault in the Third Degree pursuant to P.L. 120.00(1), but you were acting recklessly, then your actions may or may not satisfy the intentional element of the offense. Instead, a charge of P.L. 120.00(2) would be appropriate. In the latter form of Assault, the intentional requirement is replaced with a reckless element. Although the levels of the crime are the same, they are both misdemeanors, if your mental state was reckless as opposed to intentional, then P.L. 120.00(1) would not be the appropriate charge.
Petitioner, by his attorney, has filed a writ of habeas corpus seeking vacatur of a parole warrant and release to parole supervision. Petitioner alleges that his right to due process and fundamental fairness was denied when the Division of Parole, having failed to establish probable cause at a preliminary hearing, filed a second parole warrant containing a “new” charge arising out of the same underlying incident as the initial charges that were not sustained.
Petitioner was convicted of assault in the second degree and criminal possession of a weapon in the third degree. He was sentenced to concurrent terms of 4 years and 1 1/3 to 4 years respectively. Petitioner was released to parole supervision on April 25, 2003. Since petitioner resides in Mount Vernon, he was being supervised in Westchester County, and one of the conditions of his parole was that he not leave the county without permission from his parole officer.
A Bronx County Criminal lawyer said that petitioner was arrested and charged with robbery and related offenses in Bronx County on April 21, 2006. He was declared delinquent as of that date. Parole warrant No. 411663 was executed on April 26, 2006. The violation of release report contained six charges, all relating to petitioner’s arrest for robbery and related charges on April 21, 2006 in Bronx County. The first five specifications related to the substantive allegations of petitioner’s new case. The sixth charge alleged that petitioner had violated his curfew by being out of his residence after 7:00 P.M.
Defendant was originally charged in criminal court with assault in the second degree, Penal Law § 120.05 (3), assault in the third degree, Penal Law § 120.00 (1), resisting arrest, Penal Law § 205.30, public lewdness, Penal Law § 245.00 (a), and disorderly conduct, Penal Law § 240.20 (1). Following a bench trial on August 10, 2005, I found the defendant guilty of attempted assault in the third degree, Penal Law §§ 110.00 and 120.00, a misdemeanor, and disorderly conduct, Penal Law § 240.20, a violation.
Defendant now moves, pursuant to CPL 440.10 and 440.20, to have this court vacate her conviction and resentence her, after first adjudicating her a mandatory youthful offender. Counsel contends that CPL 720.20 (1) (b) requires that she be so adjudicated, and if I were to refuse to do so that would abrogate her equal protection rights, and constitute punishment in violation of the Ex Post Facto Clause of the United States Constitution.
A Bronx County Criminal lawyer said that the People oppose the motion to the extent of defendant’s constitutional arguments, but “do not oppose the defendant’s application for this Court to vacate Defendant’s sentence and re-sentence defendant as a mandatory youthful offender.” And in the People’s memorandum of law they argue that the defendant should be entitled to mandatory youthful offender treatment.
Defendant and complainant are husband and wife. Immediately prior to his arrest, defendant and his wife were staying in separate cooperative apartments, each jointly owned by them, in the same apartment building in Manhattan. The larger of the two apartments was the couple’s marital home, while the smaller served as the wife’s office. As a consequence of severe marital conflict between them, the wife was temporarily sleeping in her office, but had access to the larger apartment during the day. The defendant husband continued to occupy and sleep in the larger apartment.
A New York Criminal Lawyer said that, defendant was arrested on June 24, 1988 and charged with Assault in the Third Degree, and with Harassment, on the complaint of his wife. According to the June 24 complaint of Police Officer corroborated by the complainant wife on the same day, defendant, with intent to cause physical injury and to harass and annoy his wife, had punched her in the face and knocked out one of her teeth. The alleged assault and harassment occurred after the wife had returned to sleep in the larger apartment and refused to let the husband in.
A New York Domestic Violence Lawyer said that, at his arraignment on June 24, 1988, defendant was represented by counsel, and with the consent of the People was released on his own recognizance. At the arraignment, the People requested, and the court issued, a Temporary Order of Protection, effective until July 17, 1988, unless further extended by the court. No argument was heard, or testimony presented, either in support of or in opposition to the issuance of the TOP. The Temporary Order of Protection, issued on the officially prescribed form used for this purpose in the Criminal Court for the City of New York, directed defendant as follows: (a) to stay away from the home, school, business or place of employment of the complainant; (c) to abstain from offensive conduct against the complainant; (d) to refrain from acts of omission or commission that tend to make the home not a proper place for the complainant. The effect of this Temporary Order of Protection was to exclude the defendant from both of the couple’s apartments, since one was arguably the complainant’s home and the other her office.
A Kings Criminal Lawyer said that, the defendant, charged with Attempted Assault in the Third Degree (PL §110/120.00), moves to dismiss the superseding information pursuant to CPL 170.35(1)(a) for facial insufficiency. The People oppose. The accusatory portion of the superseding information alleges that, the Police Officer says that on or about April 2, 2007 at approximately 6:18 p.m. the defendant committed the offense(s) of PL 110/120.00(1) Attempted Assault in the Third Degree.”
A Kings Order of Protection Lawyer said that, the deponent states that at the above time and place, deponent observed a woman in an excited state in that she was flagging down deponent for help, screaming, and had watery eyes at that time, and that she stated to deponent that the defendant did strangle around the neck and did punch her about the face. The deponent further states that deponent observed her with a swollen neck, red marks to the neck, and a laceration and swelling to her lip. To date, no supporting deposition from the complainant has been filed.
A Kings Domestic Violence Lawyer said that, the defendant contends that the accusatory instrument is facially insufficient because the statements made by the complainant to the Police Officer do not fit within the excited utterance exception to the hearsay rule. Specifically, he contends that the accusatory instrument fails to allege when the assault occurred or what the complainant was doing in the interim between the assaults and when she flagged down the officer. Thus, he concludes, there are no facts presented for the court to determine whether the complainant had an opportunity to reflect or if she was excited due to the alleged assault itself.
This is an appeal from the judgments of the Supreme Court, Bronx County, rendered March 26, 1992, convicting each defendant of two counts of robbery in the first degree, and one count each of assault in the first degree, grand larceny in the third degree, and criminal possession of stolen property in the third degree, and sentencing each defendant (Defendant-Appellant as a second violent felony offender and the other Defendant-Appellant as a second felony offender) to concurrent terms of 12 1/2 to 25 years, 12 1/2 to 25 years, 7 1/2 to 15 years, 3 to 6 years, and 3 to 6 years, respectively, unanimously modified, on the law, to the extent of reducing each defendant’s conviction of grand larceny in the third degree to grand larceny in the fourth degree, and reducing each defendant’s conviction of criminal possession of stolen property in the third degree to criminal possession of stolen property in the fourth degree, and reducing each defendant’s sentence on each of those counts to 2 to 4 years.
The issue in this case is whether the court erred in convicting the defendant.
The Court held that, except as discussed infra, the jury’s verdicts were neither based on insufficient evidence nor were they against the weight of the evidence. Specifically, there was ample evidence that defendants’ use of force was for the purpose of taking property, in that car keys were taken during defendants’ sudden, unprovoked assault upon the victims, notwithstanding that the car itself was not taken until shortly thereafter. However, there was insufficient evidence that the car’s value was over $3000, and we accordingly modify by reducing the convictions of grand larceny and criminal possession of stolen property from third to fourth degree. In view of the remaining concurrent sentences, we see no need to remand for resentencing, and instead reduce the sentence on each of the reduced counts to 2 to 4 years.
On April 27, 1942, the defendant appearing with counsel pleaded not guilty to the following indictments: First count, robbery 1st degree; Second count, grant larceny 2nd degree; Third count, assault 2nd degree; Fourth count, robbery 1st degree; Fifth county, grand larceny 1st degree; Sixth count, assault 2nd degree; Seventh count, attempted rape 1st degree; Eighth count, assault 2nd degree. 2) Indictment No. 28704b–First count, attempted rape 1st degree; Second count, attempted rape 2nd degree; Third count, abduction; Fourth count, assault 2nd degree. 3) Indictment No. 28704c–First count, robbery 1st degree; Second count, assault 2nd degree; Third count, grand larceny 1st degree.4) Indictment No. 28704d–First count, robbery 1st degree; Second count, grand larceny 1st degree; Third count, assault 2nd degree; Fourth count, sodomy; Fifth count, assault 2nd degree.5) Indictment No. 28704e–First count, sodomy; Second count, assault 2nd degree.
A Kings Grand Larceny Lawyer said that, on May 2, 1942, a motion to have the criminal defendant committed to Kings County Hospital for psychiatric examination was denied. A similar motion was made and denied on May 4, 1942, by the Judge who at the same time granted over the objection of the defendant the District Attorney’s motion to consolidate the five indictments pursuant to section 279 of the Code of Criminal Procedure. On May 11, 1942, the defendant pleaded guilty before the same judge to each count of indictment numbers 28704a, 28704b, 28704c, 28704d and 28704e, and was then committed to Kings County Hospital for psychiatric examination. On May 25, 1942, the psychiatric report, finding the defendant not insane, not mentally defective, and capable of understanding the charge and proceedings against him and of making his defense, was confirmed and the Judge sentenced the defendant to Prison as follows:
1) On Indictment No. 28704a, for a term of not less than 15 years and not more than 30 years on counts 1, 2 and 3; for a term of not less than 15 and not more than 30 years on counts 4, 5 and 6; and for a term of not less than 5 years and not more than 10 years on counts 7 and 8.; 2) On Indictment No. 28704b, for a term of not less than 5 years and not more than 10 years on counts 1, 2, 3 and 4. This sentence to run consecutively with the expiration of the sentence imposed on indictment No. 28704a.; 3) On Indictment No. 28704c, for a term of not less than 15 years and not more than 30 years on counts 1, 2 and 3. This sentence to run consecutively at the expiration of the sentence imposed on indictment No. 28704b (and indictment No. 28704a); 4) On Indictment No. 28704d, for a term of not less than 7 1/2 years and not more than 15 years on counts 1, 2 and 3, and for a term of not less than 10 years and not more than 20 years on counts 4 and 5. This sentence to run consecutively at the expiration of the sentence imposed on indictment 28704c (and indictment numbers 28704a and 28704b); 5) On Indictment No. 28704e, for a term of not less than 10 years and not more than 20 years on counts 1 and 2. This sentence to run consecutively at the expiration of the sentence imposed on indictment No. 28704d (and indictment numbers 28704a, 28704b and 28704c).