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People v. Crespi

Appellate Division of the Supreme Court of New York, Second Department
May 27, 2008
51 A.D.3d 1036 (N.Y. App. Div. 2008)

Opinion

No. 2007-08555.

May 27, 2008.

Appeal by the People from so much of an order of the County Court, Orange County (Freehill, J.), dated August 20, 2007, as, upon the defendant's omnibus motion, dismissed count one of the indictment charging assault in the second degree on the ground that Penal Law § 120.05 (10) is unconstitutional.

Francis D. Phillips II, District Attorney, Goshen, N.Y. (David R. Huey and Andrew R. Kass of counsel), for appellant.

Michael H. Sussman, Goshen, N.Y., for respondent.

Before: Rivera, J.P., Covello, Angiolillo and McCarthy, JJ.


Ordered that the order is reversed insofar as appealed from, on the law, and the matter is remitted to the County Court, Orange County, for further proceedings in accordance herewith.

Under the facts of this case, the County Court should not have passed upon the constitutionality of Penal Law § 120.05 (10) without first providing notice to the State Attorney General, as required by CPLR 1012 (b) and Executive Law § 71. Accordingly, we remit the matter to the County Court, Orange County, for a new determination on the issue of whether count one of the indictment should be dismissed on the ground that Penal Law § 120.05 (10) is unconstitutional, after notice is provided to the State Attorney General in accordance with CPLR 1012 (b) and Executive Law § 71, and the submission of further briefs on the issue ( see Lanz v Feola, 181 AD2d 1053).


Summaries of

People v. Crespi

Appellate Division of the Supreme Court of New York, Second Department
May 27, 2008
51 A.D.3d 1036 (N.Y. App. Div. 2008)
Case details for

People v. Crespi

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. JASMIN CRESPI…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 27, 2008

Citations

51 A.D.3d 1036 (N.Y. App. Div. 2008)
2008 N.Y. Slip Op. 4882
857 N.Y.S.2d 505

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