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Right to Counsel.

In a proceeding pursuant to part three, article six of the Family Court Act to allow a mother visitation with her child in her home, the Fourth Department determined the grandmother, who had primary physical custody of the child, should have been advised of her right to assigned counsel (Family Court Act section 262 (a)(iii)).  The court’s failure to so advise her constituted reversible error.  Matter of Wright vs Walker, 11, CA-12-00962 Fourth Dept. 2-1-13

 

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STATUTORY NOTICE REQUIREMENTS FOR GRAND JURY PRESENTATION STRICTLY CONSTRUED AND ENFORCED, CONVICTION REVERSED FOR FAILURE TO NOTIFY DEFENDANT OF THE TIME AND PLACE OF THE PRESENTATION.
FAMILY COURT DID NOT HAVE THE AUTHORITY TO CONDITION VISITATION UPON FATHER’S PARTICIPATION IN MENTAL HEALTH COUNSELING; THEREFORE FATHER’S PETITION TO MODIFY CUSTODY AND VISITATION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THAT ORDER HAD BEEN VIOLATED (FOURTH DEPT).
Newly Discovered Evidence Indicating Defendant Was Not the Shooter Required a New Trial
BECAUSE FATHER’S ATTORNEY APPEARED IN THE CUSTODY PROCEEDING FATHER WAS NOT IN DEFAULT AND THE ORDER WAS THEREFORE APPEALABLE (FOURTH DEPT).
​ THE DOCTRINE OF MERGER REQUIRED REVERSAL OF THE KIDNAPPING CONVICTION AND THE INCLUSORY-CONCURRENT-COUNT DOCTRINE REQUIRED REVERSAL OF THE FORCIBLE TOUCHING CONVICTION (FOURTH DEPT).
THE RECORD IS SILENT ABOUT THE REASON FOR DEFENDANT’S PERIODIC ABSENCE FROM THE TRIAL; WHERE THERE IS NO EVIDENCE A DEFENDANT’S ABSENCE WAS DELIBERATE, CONDUCTING THE TRIAL IN DEFENDANT’S ABSENCE IS A “MODE OF PROCEEDINGS” ERROR REQUIRING REVERSAL (FOURTH DEPT).
INJURY FROM DIVING INTO THE SHALLOW END OF A POOL NOT ACTIONABLE.
INSURER HAD A DUTY TO DEFEND LAWSUIT BY RESIDENTS WHICH ALLEGED THE INSURED CONTAMINATED THE AREA WITH HAZARDOUS MATERIALS, ALTHOUGH THERE WAS AN EXCLUSION FOR DAMAGES CAUSED BY HAZARDOUS MATERIALS, THE ALLEGATION OF A MALODOROUS CONDITION WAS DEEMED NOT NECESSARILY RELATED TO HAZARDOUS MATERIALS.

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