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DEFENDANT’S MOTION TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN GRANTED, THE UNAVAILABILITY OF A WITNESS AND THE RELATED ADJOURNMENT SHOULD NOT HAVE BEEN CHARGED TO THE PEOPLE (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant’s motion to dismiss the indictment on speedy trial grounds should not have been granted. The delay attributed to the unavailability of a witness and the related adjournment should not have been charged to the People:

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We agree with the People that a witness’s one-day unavailability while her father is undergoing heart surgery is an excludable delay that was “occasioned by exceptional circumstances” … . Moreover, the ensuing 21-day adjournment until February 2, 2017 was attributable to the court and not chargeable to the People … , inasmuch as the People had requested a one-day adjournment and “any period of an adjournment in excess of that actually requested by the People is excluded” … . People v Barnett, 2018 NY Slip Op 00968, Fourth Dept 2-9-18

CRIMINAL LAW (DEFENDANT’S MOTION TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN GRANTED, THE UNAVAILABILITY OF A WITNESS AND THE RELATED ADJOURNMENT SHOULD NOT HAVE BEEN CHARGED TO THE PEOPLE (FOURTH DEPT))/SPEEDY TRIAL (CRIMINAL LAW, DEFENDANT’S MOTION TO DISMISS THE INDICTMENT ON SPEEDY TRIAL GROUNDS SHOULD NOT HAVE BEEN GRANTED, THE UNAVAILABILITY OF A WITNESS AND THE RELATED ADJOURNMENT SHOULD NOT HAVE BEEN CHARGED TO THE PEOPLE (FOURTH DEPT))

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FAMILY COURT SHOULD NOT HAVE DELEGATED ITS AUTHORITY TO ORDER VISITATION TO THE THERAPISTS BY CONDITIONING FATHER’S VISITATION ON HIS PARTICIPATION IN THERAPEUTIC COUNSELING (FOURTH DEPT).
DESIGNATING DEFENDANT A SEXUALLY VIOLENT OFFENDER BASED SOLELY UPON THE FACT HE WAS REQUIRED TO REGISTER AS A SEX OFFENDER IN PENNSYLVANIA VIOLATED DUE PROCESS; HOWEVER THE MATTER WAS REMITTED TO DETERMINE WHETHER ANY OF THE PENNSYLVANIA FELONIES WOULD HAVE CONSTITUTED A SEXUALLY VIOLENT OFFENSE IN NEW YORK, A QUESTION NOT RAISED BEFORE COUNTY COURT (FOURTH DEPT). ​
ALTHOUGH THE PEOPLE SHOULD HAVE DISCOVERED THE PROBLEM WITH CERTAIN EVIDENCE SOONER, FOR SPEEDY TRIAL PURPOSES THE PEOPLE CAN BE CHARGED ONLY WITH THE TIME NECESSARY TO INVESTIGATE THE NEWLY DISCOVERED EVIDENTIARY ISSUE; THE NEED FOR MORE INVESTIGATION DID NOT INVALIDATE THE PEOPLE’S STATEMENT OF READINESS WHICH WAS WITHDRAWN; THEREFORE THE INDICTMENT SHOULD NOT HAVE BEEN DISMISSED ON SPEEDY TRIAL GROUNDS (FOURTH DEPT).
COUNTY’S INTERPRETATION OF REGULATION WAS RATIONAL AND COULD NOT, THEREFORE, BE DISTURBED BY THE COURT; TIME LIMITS APPLICABLE TO ADMINISTRATIVE DECISIONS ARE DISCRETIONARY.
QUESTION OF FACT WHETHER SNOW PLOW DRIVER ACTED WITH RECKLESS DISREGARD IN THIS TRAFFIC ACCIDENT CASE, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).
DEFENDANT’S COUNTERCLAIMS MADE IN AN ACTION IN WHICH A DEFAULT JUDGMENT WAS GRANTED ARE NOT BARRED BY THE RES JUDICATA DOCTRINE; DEFENDANT, NOW AS A PLAINTIFF, CAN BRING A NEW ACTION BASED ON THE COUNTERCLAIMS; NEW YORK IS A “PERMISSIVE COUNTERCLAIM” JURISDICTION (FOURTH DEPT).
HERE PLAINTIFFS ALLEGED THEY WERE SEXUALLY ABUSED DECADES AGO IN MASSACHUSETTS AND SUED UNDER THE CHILD VICTIMS ACT WHICH SERVES TO EXTEND THE STATUTE OF LIMITATIONS; ORDINARILY THE BORROWING STATUTE APPLIES TO OUT-OF-STATE TORTS REQUIRING THE ACTION TO BE TIMELY UNDER BOTH NEW YORK AND THE FOREIGN STATE’S LAWS; HERE THE “RESIDENT EXCEPTION” APPLIED BECAUSE THE PLAINTIFF’S WERE NEW YORK RESIDENTS AT THE TIME OF THE ALLEGED ABUSE; THEREFORE THE ACTION NEED ONLY BE TIMELY UNDER NEW YORK’S CHILD VICTIMS ACT (FOURTH DEPT).
SCHOOL COULD NOT HAVE FORESEEN ASSAULT ON PLAINTIFF BY A CLASSMATE IN GYM CLASS, THE CLASSMATE’S VIOLENT ACTIONS WHEN HE WAS YOUNGER, THREE YEARS BEFORE, DID NOT PUT THE SCHOOL ON NOTICE THAT THE CLASSMATE POSED A DANGER (FOURTH DEPT).

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