June 17, 2008

Appellate Division, Fourth Department Case Summaries

Appellate Division, Fourth Department

Shareholder's Suit

Stock Split

Anderson v. Blabey


Appealed from Supreme Court, Livingston County

Background: The plaintiff in this shareholders' derivative suit appeals from an order granting summary judgment to the defendant. The suit alleges the defendants breached fiduciary duties to the corporation by activities related to the effectuating of a reverse stock split.

Ruling: The defendants were entitled to summary judgment as they established the methodology used to determine the fair market value of the stock prior to the split was reasonable. The plaintiff failed to raise any issue of fact on this point. The dismissal is affirmed.

Bradley C. Rosen for the appellant, and A. Paul Britton of Harter Secrest & Emery LLP for the respondents


Merger Doctrine

People v. Jacobs

KA 06-03460

Appealed from Supreme Court, Erie County

Background: The defendant was convicted of felony assault, weapons possession, kidnapping and attempted robbery. He contended on appeal that the kidnapping convictions should be set aside.

Ruling: The judgment is modified by setting aside the kidnapping convictions. The restraint and asportation of the victim were so much the part of the attempted robbery that those acts could not have been committed without the acts comprising the kidnapping. Under the merger doctrine, the two counts of kidnapping were set aside.

Nicholas T. Texido for the defendant, and Donna A. Milling, Erie County District Attorney's Office

'Brady' Material

Youthful Offender

People v. Gonzalez

KA 05-00006

Appealed from Monroe County Court

Background: The defendant was convicted after trial of drug sale and possession. On appeal, he contended the prosecution's failure to provide information regarding one of its witnesses violated the rule in Brady v. Maryland, that the prosecution was required to provide information regarding the underlying acts of the witness's youthful offender adjudication.

Ruling: The prosecution's Brady duty extends to evidence impeaching the credibility of prosecution witnesses whose testimony may determine guilt or innocence. A youthful offender adjudication is not a judgment of conviction and information concerning the underlying acts does not constitute Brady material.

Timothy S. Davis for the defendant, and Stephen X. O'Brien, Monroe County District Attorney's Office.

Originally published by Daily Record Staff & Wire Reports.

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