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VIOLATION OF PROBATION PETITION FACIALLY INSUFFICIENT, TIME, PLACE AND MANNER OF ALLEGED VIOLATIONS NOT STATED (CT APP).

The Court of Appeals, reversing the appellate division, determined the violation of probation petition was insufficient on its face and should have been dismissed:

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County Court determined that defendant violated the terms of his probation, which prohibited him from associating with any convicted criminals, when on four occasions he picked up and walked the dog he once shared with his former intimate partner, who had a DWI misdemeanor conviction. The amended violation of probation petition, which listed four dates on which defendant allegedly “had contact with” a convicted criminal, but did not include any additional information, was facially insufficient as it did not comport with the statutory requirement of providing probationer with the time, place, and manner of the alleged violation (CPL 410.70). Here, the defect in the amended petition was not cured by defendant’s questions posed to the court at the prior arraignment, the substance of which indicated that he did not have notice of the manner in which he allegedly violated a condition of his probation. People v Kislowski, 2017 NY Slip Op 08169, CtApp 11-21-17

 

CRIMINAL LAW (VIOLATION OF PROBATION PETITION FACIALLY INSUFFICIENT, TIME, PLACE AND MANNER OF ALLEGED VIOLATIONS NOT STATED (CT APP))/VIOLATION OF PROBATION  (VIOLATION OF PROBATION PETITION FACIALLY INSUFFICIENT, TIME, PLACE AND MANNER OF ALLEGED VIOLATIONS NOT STATED (CT APP))/PROBATION (CRIMINAL LAW, VIOLATION OF PROBATION PETITION FACIALLY INSUFFICIENT, TIME, PLACE AND MANNER OF ALLEGED VIOLATIONS NOT STATED (CT APP))

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STATUTE REDUCING HEALTH BENEFITS FOR STATE EMPLOYEES DID NOT VIOLATE THE JUDICIAL COMPENSATION CLAUSE OF THE NEW YORK STATE CONSTITUTION (CT APP).

The Court of Appeals, in a per curiam opinion, with two concurring opinions, determined that the reduction in health benefits provided under the Civil Service Law did not violate the Judicial Compensation Clause of the NYS Constitution:

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The issue presented on this appeal is whether Civil Service Law § 167 (8), as amended, authorizing a reduction of the State’s contribution to health insurance benefits for State employees, including members of the State judiciary, violates the Judicial Compensation Clause of the State Constitution  … . We conclude the State’s contribution is not judicial compensation protected from direct diminution by the Compensation Clause, and the reductions in contributions do not have the effect of singling out the judiciary for disadvantageous treatment. Therefore, plaintiffs’ constitutional challenge fails. Bransten v State of New York, 2017 NY Slip Op 08168, CtApp 11-21-17

 

CONSTITUTIONAL LAW (NYS) (STATUTE REDUCING HEALTH BENEFITS FOR STATE EMPLOYEES DID NOT VIOLATE THE JUDICIAL COMPENSATION CLAUSE OF THE NEW YORK STATE CONSTITUTION (CT APP))/JUDGES (CONSTITUTIONAL LAW, STATUTE REDUCING HEALTH BENEFITS FOR STATE EMPLOYEES DID NOT VIOLATE THE JUDICIAL COMPENSATION CLAUSE OF THE NEW YORK STATE CONSTITUTION (CT APP))/JUDGES (STATUTE REDUCING HEALTH BENEFITS FOR STATE EMPLOYEES DID NOT VIOLATE THE JUDICIAL COMPENSATION CLAUSE OF THE NEW YORK STATE CONSTITUTION (CT APP))/EMPLOYMENT LAW (JUDGES, STATUTE REDUCING HEALTH BENEFITS FOR STATE EMPLOYEES DID NOT VIOLATE THE JUDICIAL COMPENSATION CLAUSE OF THE NEW YORK STATE CONSTITUTION (CT APP))/JUDICIAL COMPENSATION CLAUSE (NYS CONSTITUTION, STATUTE REDUCING HEALTH BENEFITS FOR STATE EMPLOYEES DID NOT VIOLATE THE JUDICIAL COMPENSATION CLAUSE OF THE NEW YORK STATE CONSTITUTION (CT APP))

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DESPITE THE INITIAL FRAUDULENT TRANSFER OF THE MORTGAGED PROPERTY AND THE ABSENCE OF THE NOTE, PLAINTIFF LENDER COULD FORECLOSE AS THE UNDISPUTED HOLDER OF THE NOTE, THE INITIAL FRAUDULENTLY INDUCED DEED WAS VOIDABLE, NOT VOID (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Renwick, over a comprehensive dissenting opinion, determined plaintiff could foreclose on a mortgage despite the initial fraudulent transfer of the property and the absence of the note:

…[P]laintiff Peter Weiss seeks, among other things, a foreclosure and sale based on a Mortgage and Note Extension and Modification Agreement (CEMA) executed by defendant Edward Phillips. Plaintiff lent $500,000 to borrowers who purported to own the real estate property they sought to mortgage. The borrowers signed a note, in which they promised to pay the loan, and a mortgage, in which they gave the plaintiff/lender a security interest in the property they purported to own. The borrowers, however, acquired the property by fraudulent means. After the rightful owner, Phillips, reacquired the property, he executed the CEMA with the individual lender, Weiss. Pursuant to the CEMA, Phillips acknowledged Weiss’s rights under the note and mortgage; and, Weiss agreed to forbear from foreclosing on the subject property for a year, presumably to permit Phillips to obtain refinancing.

… [W]e find that Weiss’s interest in the property as a mortgagee was not rendered null and void because his borrowers, the mortgagors, had acquired the property by fraudulent means. In addition, we find that Weiss met his burden for summary judgment, on his claim for foreclosure and sale, by submitting the Mortgage and CEMA, along with undisputed evidence establishing both the existence of the note, which obviated the need to submit the note as proof that Weiss had the right to foreclose, and the nonpayment. * * *

UCC 3-804 allows one to maintain an action as a “holder” on a promissory note even though the instrument has been lost or destroyed. The section does not apply here where it is established that plaintiff has the right to sue on the note as the undisputed “holder” of the note. * * *

Forged deeds and/or encumbrances are those executed under false pretenses, and are void ab initio … . The interests of subsequent bona fide purchasers or encumbrancers for value are thus not protected under Real Property Law § 266 when their title is derived from a forged deed or one that is the product of false pretenses … . In contrast, a fraudulently induced deed is merely voidable, not void … . Weiss v Phillips, 2017 NY Slip Op 08209, First Dept 11-21-17

FORECLOSURE (DESPITE THE INITIAL FRAUDULENT TRANSFER OF THE MORTGAGED PROPERTY AND THE ABSENCE OF THE NOTE, PLAINTIFF LENDER COULD FORECLOSE AS THE UNDISPUTED HOLDER OF THE NOTE, THE INITIAL FRAUDULENTLY INDUCED DEED WAS VOIDABLE, NOT VOID (FIRST DEPT))/REAL PROPERTY LAW (DEEDS, DESPITE THE INITIAL FRAUDULENT TRANSFER OF THE MORTGAGED PROPERTY AND THE ABSENCE OF THE NOTE, PLAINTIFF LENDER COULD FORECLOSE AS THE UNDISPUTED HOLDER OF THE NOTE, THE INITIAL FRAUDULENTLY INDUCED DEED WAS VOIDABLE, NOT VOID (FIRST DEPT))/UNIFORM COMMERCIAL CODE (FORECLOSURE, HOLDER OF THE NOTE, DESPITE THE INITIAL FRAUDULENT TRANSFER OF THE MORTGAGED PROPERTY AND THE ABSENCE OF THE NOTE, PLAINTIFF LENDER COULD FORECLOSE AS THE UNDISPUTED HOLDER OF THE NOTE, THE INITIAL FRAUDULENTLY INDUCED DEED WAS VOIDABLE, NOT VOID (FIRST DEPT))/HOLDER (NOTE, UNIFORM COMMERCIAL CODE, FORECLOSURE, DESPITE THE INITIAL FRAUDULENT TRANSFER OF THE MORTGAGED PROPERTY AND THE ABSENCE OF THE NOTE, PLAINTIFF LENDER COULD FORECLOSE AS THE UNDISPUTED HOLDER OF THE NOTE, THE INITIAL FRAUDULENTLY INDUCED DEED WAS VOIDABLE, NOT VOID (FIRST DEPT))/DEEDS (VOIDABLE, DESPITE THE INITIAL FRAUDULENT TRANSFER OF THE MORTGAGED PROPERTY AND THE ABSENCE OF THE NOTE, PLAINTIFF LENDER COULD FORECLOSE AS THE UNDISPUTED HOLDER OF THE NOTE, THE INITIAL FRAUDULENTLY INDUCED DEED WAS VOIDABLE, NOT VOID (FIRST DEPT))

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PUBLIC BENEFIT CORPORATIONS ARE TREATED LIKE THE STATE FOR DETERMINING THEIR CAPACITY TO CHALLENGE A STATUTE, APPLICABLE DUE PROCESS STANDARD IS WHETHER THE STATUTE WAS ENACTED AS A REASONABLE RESPONSE TO REMEDY AN INJUSTICE, AT ISSUE IS A STATUTE ALLOWING LATE NOTICES OF CLAIM AGAINST BATTERY PARK CITY AUTHORITY TO BE FILED IN A 9-11 CLEANUP PERSONAL INJURY ACTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Feinman, over two concurring opinions, answered two certified questions from the Second Circuit. The defendant in the federal suit is Battery Park City Authority (BPCA), a public benefit corporation, which was sued by plaintiffs alleging personal injury caused by 9-11 clean-up of properties owned by BPCA. The legislature had enacted an amendment to the General Municpal Law to allow the plaintiffs to file late notices of claim. BPCA successfully argued in federal district court that the amendment extending the time to file notices of claim was unconstitutional as applied. When the matter came before the Second Circuit on appeal, the Second Circuit asked the Court of Appeals to determine whether the BPCA should be treated like the state for purposes of the capacity to challenge a statute (answer: yes) and asked for clarification of the standard for analyzing due process in this context (answer: whether the statute was enacted as a reasonable response in order to remedy an injustice):

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We … hold that, under the capacity rule, public benefit corporations have no greater stature to challenge the constitutionality of State statutes than do municipal corporations or other local governmental entities. Of course, our holding today does not mean that public benefit corporations can never raise such constitutional challenges; like municipalities, they may avail themselves of an exception to the general rule … . However, courts need not engage in a “particularized inquiry” to determine whether a public benefit corporation should first be treated like the State. Unlike in other contexts, for purposes of our capacity bar, every public benefit corporation is the State. * * *

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… [A] claim-revival statute will satisfy the Due Process Clause of the State Constitution if it was enacted as a reasonable response in order to remedy an injustice. Matter of World Trade Ctr. Lower Manhattan Disaster Site Litigation., 2017 NY Slip Op 08166, CtApp 11-21-17

 

MUNICIPAL LAW (NOTICES OF CLAIM, PUBLIC BENEFIT CORPORATIONS ARE TREATED LIKE THE STATE FOR DETERMINING THEIR CAPACITY TO CHALLENGE A STATUTE, APPLICABLE DUE PROCESS STANDARD IS WHETHER THE STATUTE WAS ENACTED AS A REASONABLE RESPONSE TO REMEDY AN INJUSTICE, AT ISSUE IS A STATUTE ALLOWING LATE NOTICES OF CLAIM AGAINST BATTERY PARK CITY AUTHORITY TO BE FILED IN A 9-11 CLEANUP PERSONAL INJURY ACTION (CT APP))/CONSTITUTIONAL LAW (PUBLIC BENEFIT CORPORATIONS ARE TREATED LIKE THE STATE FOR DETERMINING THEIR CAPACITY TO CHALLENGE A STATUTE, APPLICABLE DUE PROCESS STANDARD IS WHETHER THE STATUTE WAS ENACTED AS A REASONABLE RESPONSE TO REMEDY AN INJUSTICE, AT ISSUE IS A STATUTE ALLOWING LATE NOTICES OF CLAIM AGAINST BATTERY PARK CITY AUTHORITY TO BE FILED IN A 9-11 CLEANUP PERSONAL INJURY ACTION (CT APP))/9-11 (NOTICES OF CLAIM, PUBLIC BENEFIT CORPORATIONS ARE TREATED LIKE THE STATE FOR DETERMINING THEIR CAPACITY TO CHALLENGE A STATUTE, APPLICABLE DUE PROCESS STANDARD IS WHETHER THE STATUTE WAS ENACTED AS A REASONABLE RESPONSE TO REMEDY AN INJUSTICE, AT ISSUE IS A STATUTE ALLOWING LATE NOTICES OF CLAIM AGAINST BATTERY PARK CITY AUTHORITY TO BE FILED IN A 9-11 CLEANUP PERSONAL INJURY ACTION (CT APP))/BATTER PARK CITY AUTHORITY (9-11 CLEANUP, (NOTICES OF CLAIM, PUBLIC BENEFIT CORPORATIONS ARE TREATED LIKE THE STATE FOR DETERMINING THEIR CAPACITY TO CHALLENGE A STATUTE, APPLICABLE DUE PROCESS STANDARD IS WHETHER THE STATUTE WAS ENACTED AS A REASONABLE RESPONSE TO REMEDY AN INJUSTICE, AT ISSUE IS A STATUTE ALLOWING LATE NOTICES OF CLAIM AGAINST BATTERY PARK CITY AUTHORITY TO BE FILED IN A 9-11 CLEANUP PERSONAL INJURY ACTION (CT APP))/CAPACITY TO CHALLENGE STATUTE (PUBLIC BENEFIT CORPORATIONS ARE TREATED LIKE THE STATE FOR DETERMINING THEIR CAPACITY TO CHALLENGE A STATUTE, APPLICABLE DUE PROCESS STANDARD IS WHETHER THE STATUTE WAS ENACTED AS A REASONABLE RESPONSE TO REMEDY AN INJUSTICE, AT ISSUE IS A STATUTE ALLOWING LATE NOTICES OF CLAIM AGAINST BATTERY PARK CITY AUTHORITY TO BE FILED IN A 9-11 CLEANUP PERSONAL INJURY ACTION (CT APP))

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IN DENYING DEFENDANT’S MOTIONS FOR FRYE HEARINGS, THE TRIAL COURT PROPERLY RELIED ON THE RESULTS OF FRYE HEARINGS IN OTHER COURTS OF COORDINATE JURISDICTION CONCERNING LCN AND FST DNA TESTING (FIRST DEPT).

The First Department noted that the trial court’s denial of a Frye hearing about DNA testing was properly denied based upon the results of an eight-month long Frye hearing on the same issues in a court of coordinate jurisdiction:

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The motion court’s pretrial ruling … denying defendant’s motion to exclude, or alternatively to conduct a Frye … hearing on, expert testimony relating to high sensitivity, or low copy number (LCN) DNA testing, was a provident exercise of discretion. At the time that the motion court’s ruling was made, a court of coordinate jurisdiction, following an eight-month Frye hearing, had issued a decision holding that LCN DNA testing was “generally accepted as reliable in the forensic scientific community” and “not a novel scientific procedure” … . “A court need not hold a Frye hearing where it can rely upon previous rulings in other court proceedings as an aid in determining the admissibility of the proffered testimony” … . …

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Likewise, the trial court’s denial of defendant’s renewed motion for a Frye hearing … , which motion was recast to include evidence relating to both LCN DNA testing and a then-recently issued FST DNA testing report, was a provident exercise of discretion. The trial court’s ruling was consistent with prior determinations of courts of coordinate jurisdiction that these procedures were not novel scientific techniques and were generally accepted by the relevant scientific community … . People v Gonzalez, 2017 NY Slip Op 08191, First Dept 11-21-17

 

CRIMINAL LAW (EVIDENCE, FRYE HEARINGS, DNA TESTING, IN DENYING DEFENDANT’S MOTIONS FOR FRYE HEARINGS, THE TRIAL COURT PROPERLY RELIED ON THE RESULTS OF FRYE HEARINGS IN OTHER COURTS OF COORDINATE JURISDICTION CONCERNING LCN AND FST DNA TESTING (FIRST DEPT))/EVIDENCE (CRIMINAL LAW, FRYE HEARINGS, DNA TESTING, IN DENYING DEFENDANT’S MOTIONS FOR FRYE HEARINGS, THE TRIAL COURT PROPERLY RELIED ON THE RESULTS OF FRYE HEARINGS IN OTHER COURTS OF COORDINATE JURISDICTION CONCERNING LCN AND FST DNA TESTING (FIRST DEPT))/FRYE HEARINGS (CRIMINAL LAW DNA TESTING, IN DENYING DEFENDANT’S MOTIONS FOR FRYE HEARINGS, THE TRIAL COURT PROPERLY RELIED ON THE RESULTS OF FRYE HEARINGS IN OTHER COURTS OF COORDINATE JURISDICTION CONCERNING LCN AND FST DNA TESTING (FIRST DEPT))/DNA (CRIMINAL LAW, FRYE HEARINGS, IN DENYING DEFENDANT’S MOTIONS FOR FRYE HEARINGS, THE TRIAL COURT PROPERLY RELIED ON THE RESULTS OF FRYE HEARINGS IN OTHER COURTS OF COORDINATE JURISDICTION CONCERNING LCN AND FST DNA TESTING (FIRST DEPT))

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DEFENDANT WAS TOLD HE COULD APPEAL THE DENIAL OF HIS SPEEDY TRIAL MOTION AFTER ENTERING A GUILTY PLEA, WRONG ADVICE WARRANTED VACATING THE PLEA DESPITE FAILURE TO PRESERVE THE ARGUMENT (FIRST DEPT).

The First Department, vacating defendant’s guilty plea, determined the wrong advice about whether defendant could appeal after pleading guilty warranted reversal, despite the failure to preserved the error. Defendant was told he could appeal the denial of his speedy trial motion:

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A defendant forfeits his right to appellate review of a CPL 30.30 motion upon a guilty plea … . However, here, the record is clear that the court misadvised defendant that he could pursue his 30.30 claim on appeal of a guilty plea … . Neither the defense counsel nor the prosecutor corrected the court’s misadvice. Moreover, defendant accepted a lengthier sentence, and declined to replead to a different offense with a shorter prison sentence, based on this misstatement that his 30.30 claim could be raised on appeal. Under the totality of these circumstances, defendant’s plea is vacated and the matter remanded … . As defendant had no practical ability to object to the error because he was sentenced on the date the misstatement occurred, … , he was not required to preserve his argument. People v Sanchez, 2017 NY Slip Op 08193, First Dept 11-21-17

 

CRIMINAL LAW (DEFENDANT WAS TOLD HE COULD APPEAL THE DENIAL OF HIS SPEEDY TRIAL MOTION AFTER ENTERING A GUILTY PLEA, WRONG ADVICE WARRANTED VACATING THE PLEA DESPITE FAILURE TO PRESERVE THE ARGUMENT (FIRST DEPT))/APPEALS (CRIMINAL LAW, DEFENDANT WAS TOLD HE COULD APPEAL THE DENIAL OF HIS SPEEDY TRIAL MOTION AFTER ENTERING A GUILTY PLEA, WRONG ADVICE WARRANTED VACATING THE PLEA DESPITE FAILURE TO PRESERVE THE ARGUMENT (FIRST DEPT))/GUILTY PLEA, VACATION OF (DEFENDANT WAS TOLD HE COULD APPEAL THE DENIAL OF HIS SPEEDY TRIAL MOTION AFTER ENTERING A GUILTY PLEA, WRONG ADVICE WARRANTED VACATING THE PLEA DESPITE FAILURE TO PRESERVE THE ARGUMENT (FIRST DEPT))

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FAILURE TO INSTRUCT THE JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED UPON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON THE REMAINING CHARGES IS REVERSIBLE ERROR, DESPITE THE FAILURE TO PRESERVE THE ERROR (FIRST DEPT).

The First Department, reversing defendant’s conviction, noted the jury should have been informed that an acquittal on the top count (second degree murder) based on the justification defense required an acquittal on the remaining charges. The defendant was convicted of manslaughter. Although the error was not preserved for appeal, the court exercised its interest of justice jurisdiction:

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As in cases such as People v Velez (131 AD3d 129 [1st Dept 2015]), the court’s charge failed to convey that an acquittal on the top count of second-degree murder based on a finding of justification would preclude consideration of the remaining charges. We find that this error was not harmless and warrants reversal in the interest of justice … . People v Santiago, 2017 NY Slip Op 08190, First Dept 11-21-17

 

CRIMINAL LAW (FAILURE TO INSTRUCT THE JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED UPON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON THE REMAINING CHARGES IS REVERSIBLE ERROR, DESPITE THE FAILURE TO PRESERVE THE ERROR (FIRST DEPT))/APPEALS (CRIMINAL LAW, FAILURE TO INSTRUCT THE JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED UPON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON THE REMAINING CHARGES IS REVERSIBLE ERROR, DESPITE THE FAILURE TO PRESERVE THE ERROR (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, JUSTIFICATION DEFENSE, FAILURE TO INSTRUCT THE JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED UPON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON THE REMAINING CHARGES IS REVERSIBLE ERROR, DESPITE THE FAILURE TO PRESERVE THE ERROR (FIRST DEPT))/JUSTIFICATION DEFENSE (CRIMINAL LAW, JURY INSTRUCTIONS, FAILURE TO INSTRUCT THE JURY THAT AN ACQUITTAL ON THE TOP COUNT BASED UPON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL ON THE REMAINING CHARGES IS REVERSIBLE ERROR, DESPITE THE FAILURE TO PRESERVE THE ERROR (FIRST DEPT))

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2ND DEPT USED THE WRONG STANDARD FOR APPLYING THE CONFIDENTIAL SOURCE EXEMPTION TO A FREEDOM OF INFORMATION LAW (FOIL) REQUEST FOR DOCUMENTS, CASE REMITTED, PETITIONER SOUGHT DOCUMENTS RELATING TO A REVIEW OF HIS SEX OFFENSE CASE WHICH WAS PROSECUTED AMID NATIONWIDE HYSTERIA OVER ALLEGATIONS OF RITUAL ABUSE AT DAY CARE CENTERS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two-judge partial dissent, determined that the standard for the confidentiality-source exemption for documents sought under the Freedom of Information Law (FOIL) in the 2nd Department was incorrect and remitted the matter. The requested documents relate to a review of petitioner’s conviction by a panel specifically created for that review. Petitioner had pled guilty to several sex offenses at a time when a hysteria surrounding allegations of ritual child abuse at day care centers was sweeping the country:

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The legislature’s policy of broad public access, as expressed in FOIL, dictates that the exemption for confidential sources and information be narrowly circumscribed. Therefore disclosure under FOIL can only be refused pursuant to section 87 (2) (e) (iii) if the agency presents a “particularized and specific justification for denying access” … , based on an express promise of confidentiality to the source, or by establishing that, under the circumstances of the particular case, the confidentiality of the source or information can be reasonably inferred.

Application of this rule is case and information specific, and depends on the particular facts and circumstances. In determining whether information obtained in the course of a criminal investigation should be treated as confidential or whether a source spoke on the assumption that the source’s identity or statements would remain confidential, courts may consider, as they deem relevant, such factors as the nature of the crime, the source of the information in relation to the crime, and the content of the statements or information. Where the content of a statement or information and the circumstances surrounding its compilation by law enforcement convince a court that its confidentiality can be reasonably inferred, it may be withheld or released with appropriate redactions pursuant to section 87 (2) (e) (iii). Otherwise, absent an explicit assurance of confidentiality, it may not be withheld or redacted under that FOIL exemption.

Here, because the [2nd] Department majority misconstrued the FOIL exemption asserted by respondent, the order below must be reversed and the matter remitted for consideration under the correct standard. Matter of Friedman v Rice, 2017 NY Slip Op 08167, CtApp 11-21-17

 

FREEDOM OF INFORMATION LAW (FOIL) (2ND DEPARTMENT USED THE WRONG STANDARD FOR APPLYING THE CONFIDENTIAL SOURCE EXEMPTION TO A FREEDOM OF INFORMATION LAW (FOIL) REQUEST FOR DOCUMENTS, CASE REMITTED, PETITIONER SOUGHT DOCUMENTS RELATING TO A REVIEW OF HIS SEX OFFENSE CASE WHICH WAS PROSECUTED AMID NATIONWIDE HYSTERIA OVER ALLEGATIONS OF RITUAL ABUSE AT DAY CARE CENTERS (CT APP))/CONFIDENTIAL SOURCE EXEMPTION (FREEDOM OF INFORMATION LAW (FOIL), 2ND DEPARTMENT USED THE WRONG STANDARD FOR APPLYING THE CONFIDENTIAL SOURCE EXEMPTION TO A FREEDOM OF INFORMATION LAW (FOIL) REQUEST FOR DOCUMENTS, CASE REMITTED, PETITIONER SOUGHT DOCUMENTS RELATING TO A REVIEW OF HIS SEX OFFENSE CASE WHICH WAS PROSECUTED AMID NATIONWIDE HYSTERIA OVER ALLEGATIONS OF RITUAL ABUSE AT DAY CARE CENTERS (CT APP))

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TRIAL JUDGE DID NOT INQUIRE INTO DEFENDANT’S SERIOUS REQUEST FOR ANOTHER ATTORNEY, CONVICTION REVERSED AND NEW TRIAL ORDERED (CT APP).

The Court of Appeals reversed defendant’s conviction and ordered a new trial because the trial judge did not conduct a sufficient inquiry into defendant’s request for another attorney:

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We agree with defendant that the trial court failed to adequately inquire into his “seemingly serious request[]” to substitute counsel … . Defendant’s request was supported by “specific factual allegations of ‘serious complaints about counsel'” … , and a “minimal inquiry” into “the nature of the disagreement or its potential for resolution” was warranted … . Accordingly, the trial court abused its discretion by failing to conduct such an inquiry. People v Smith, 2017 NY Slip Op 08165, CtApp 11-21-17

Similar issue and result in People v Dodson, 2017 NY Slip Op 08171, CtApp 11-21-17

CRIMINAL LAW (ATTORNEYS, TRIAL JUDGE DID NOT INQUIRE INTO DEFENDANT’S SERIOUS REQUEST FOR ANOTHER ATTORNEY, CONVICTION REVERSED AND NEW TRIAL ORDERED (CT APP))/ATTORNEYS (CRIMINAL LAW,  TRIAL JUDGE DID NOT INQUIRE INTO DEFENDANT’S SERIOUS REQUEST FOR ANOTHER ATTORNEY, CONVICTION REVERSED AND NEW TRIAL ORDERED (CT APP))

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WHOLLY ARBITRARY DECISION BY COOPERATIVE BOARD TO RESCIND PLAINTIFF’S PURCHASE CONTRACT NOT SHIELDED BY THE BUSINESS JUDGMENT RULE (FIRST DEPT).

The First Department determined the cooperative board’s rescission of plaintiff’s purchase contract was wholly arbitrary and was not shielded by the business judgment rule:

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Plaintiffs’ application to purchase a unit in defendants’ cooperative residential complex was approved by defendant Board of Directors, and then rescinded two weeks later, based upon a Board member’s erroneous report that plaintiff Richard Kallop told her he did not intend to reside in the complex, as required by the purchase contract. Plaintiffs filed a complaint seeking, inter alia, to compel defendants to permit the sale to go forward. After defendants filed their answer, plaintiffs, by order to show cause, sought an order permitting the sale to close. An evidentiary hearing was held, at which the reporting Board member’s testimony revealed that Richard Kallop had not, as she claimed, informed her he intended to reside outside the cooperative complex. For his part, Richard testified that it had always been his plan to reside in the cooperative unit with his elderly mother, co-plaintiff Joan Kallop.

Under these facts, we conclude that defendants’ decision to rescind its approval of plaintiffs’ purchase application, being without any basis in reason and without regard to the facts, was wholly arbitrary, and thus not entitled to the protections generally provided to cooperative boards by the business judgment rule … . Kallop v Board of Directors for Edgewater Park Owners’ Coop. Inc., 2017 NY Slip Op 08174, First Dept 11-21-17

 

COOPERATIVES (WHOLLY ARBITRARY DECISION BY COOPERATIVE BOARD TO RESCIND PLAINTIFF’S PURCHASE CONTRACT NOT SHIELDED BY THE BUSINESS JUDGMENT RULE (FIRST DEPT))/BUSINESS JUDGMENT RULE (COOPERATIVES, WHOLLY ARBITRARY DECISION BY COOPERATIVE BOARD TO RESCIND PLAINTIFF’S PURCHASE CONTRACT NOT SHIELDED BY THE BUSINESS JUDGMENT RULE (FIRST DEPT))

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