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Tag Archives: first impression

Criminal Practice – Evidence – First Impression — Police Interview – Accusations -Third-Party Statements (access required)

State v. Castaneda During a recorded interview of defendant, a detective told defendant that he believed defendant was lying. The detective’s remarks were admissible as statements providing the context surrounding defendant’s inculpatory responses - statements relevant to the murder charge. We find no error in defendant’s conviction of second-degree murder.

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Criminal Practice – Indecent Liberties – Satellite-Based Monitoring – Level of Supervision – Remorse — Alford Plea – First Impression (access required)

State v. Jarvis In determining the level of supervision and monitoring defendant required, the trial court could consider whether defendant’s actions showed a lack of remorse; however, we have found no authority holding that the trial court could find that defendant’s Alford plea itself showed a lack of remorse. Since we cannot determine whether the trial court relied on defendant’s Alford plea to find lack of remorse, we remand for further findings.

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Civil Practice – Subject Matter Jurisdiction – First Impression — Judgments – Execution – Supplemental Proceedings – Corporate – Piercing the Veil (access required)

Travelers Indemnity Co. of Connecticut v. Triple S Marketing Group North Carolina’s supplemental proceedings statutes do not afford a trial court jurisdiction over a motion to pierce the corporate veil of a judgment debtor. We reverse the trial court’s order allowing plaintiff to execute its judgment against individuals who were not party to the underlying lawsuit.

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Constitutional – Equal Protection — Smoking Ban – Private Clubs – First Impression — Administrative — Civil Penalties (access required)

Liebes v. Guilford County Dept. of Public Health The statutory scheme exempting nonprofit private clubs but including for-profit private clubs within the ambit of the smoking ban does not violate the plaintiff’s equal protection rights since there exists a rational basis for the legislature’s differential treatment of for-profit and nonprofit private clubs. We affirm the trial court’s order.

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Public Utilities – Municipal – Pole Attachment – ‘Refusal to Negotiate’ Claim – First Impression (access required)

Time Warner Entertainment Advance/Newhouse Partnership v. Town of Landis G.S. § 62-350 requires a town that owns utility poles to negotiate in good faith with utility providers who wish to attach their cables to the town’s utility poles; in this case, plaintiff has made no showing that the town failed to do so. The town is entitled to partial summary judgment on plaintiff’s claim that the town refused to negotiate. The town’s motion for partial summary judgment is denied as to plaintiff’s claim that the town violated the nondiscrimination requirements of G.S. § 62-350.

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Criminal Practice – Weapon Possession – Constructive Possession – Ownership – First Impression – Defective Indictment – Conspiracy – Restitution (access required)

State v. Billinger Although we have found no N.C. appellate decision directly on point, in accord with other jurisdictions, we find that evidence of defendant’s ownership of a sawed-off shotgun is sufficient to show his constructive possession of the weapon. We find no error in defendant’s conviction of possession of a weapon of mass death and destruction. We vacate both defendant’s conviction of conspiracy to commit robbery with a dangerous weapon and the trial court’s order of restitution.

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Criminal Practice – Probation Violations – Transcript of Plea – Rejection – Motion to Continue – G.S. § 15A-1023(b) – First Impression (access required)

State v. Cleary Even though G.S. § 15A-1023(b) requires that a trial court grant a defendant a continuance if the court rejects a guilty or no contest plea agreement, at a probation revocation hearing, a probationer does not plead guilty or no contest; instead, he “admits” or “denies” the allegations of a probation violation report. Probation revocation proceedings are inherently different from criminal proceedings; we hold that G.S. § 15A-1023(b) does not apply to probation revocation proceedings.

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Criminal Practice – Warrant – Dangerous Dog – Medical Expense Amount – First Impression (access required)

State v. Burge The arrest warrant alleged each element of G.S. § 67-4.3 - attack by a dangerous dog - except for the element that the injuries required medical treatment costing more than $100. Because the warrant does not allege each of the elements of § 67-4.3, defendant could not be convicted of violating that statute.

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