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THE JUDGE DID NOT HAVE A DISTINCT AND PROPER REASON TO DEMAND THE WAIVER OF DEFENDANT’S RIGHT TO APPEAL; IT APPEARS THE JUDGE WAS TRYING TO SHIELD THE DENIAL OF SUPPRESSION FROM APPELLATE REVIEW; THE POLICE OFFICERS WHO APPROACHED DEFENDANT BASED UPON AN ANONYMOUS TIP HAD ONLY THE COMMON LAW RIGHT OF INQUIRY; THE EVIDENCE DEFENDANT CONSENTED TO THE PAT DOWN SEARCH WAS INSUFFICIENT; SUPPRESSION SHOULD HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined defendant’s waiver of appeal was invalid and defendant’s motion to suppress the evidence seized from his person should have been granted: Here, the consent of the People to the plea agreement was not required because the charges remained as presented (see CPL 220.10 [2]) and, thus, the People […]

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ONLY THE CHIEF ADMINISTRATOR OF THE COURTS HAS THE POWER TO APPOINT CHIEF CLERKS AND DEPUTY CHIEF CLERKS OF THE SURROGATE’S COURTS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the Chief Administrator of the Courts, not the Surrogate’s Courts, has the power to appoint Chief Clerks and Deputy Chief Clerks of the Surrogate’s Courts: Although the Chief Clerks and Deputy Chief Clerks of the Surrogates’ Courts possess significant authority, we agree with defendant that they are, nevertheless, […]

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IN A MEDICAL MALPRACTICE TRIAL, THE “ERROR IN JUDGMENT” JURY INSTRUCTION IS ONLY APPROPRIATE WHERE A PHYSICIAN IS CONFRONTED WITH SEVERAL MEDICALLY ACCEPTABLE TREATMENTS AND CHOOSES ONE; HERE IT WAS ALLEGED DEFENDANT MISREAD AN X-RAY; GIVING THE “ERROR IN JUDGMENT” INSTRUCTION WAS REVERSIBLE ERROR (FOURTH DEPT). ​

The Fourth Department, ordering a new trial in this medical malpractice case, determined the judge should not have given the jury an “error in judgment” jury instruction. The complaint alleged defendant physician failed to notice an abnormality in a lung X-ray. The “error in judgment” instruction is only appropriate when a physician is confronted with […]

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MOTHER ASKED TO REPRESENT HERSELF IN THIS CUSTODY PROCEEDING AND THEN DEFAULTED; THE ISSUE IS APPEALABLE DESPITE THE DEFAULT; THE JUDGE’S FAILURE TO CONDUCT A SEARCHING INQUIRY UPON MOTHER’S REQUEST TO REPRESENT HERSELF REQUIRED REMITTAL AND A NEW HEARING ON THE PETITION (FOURTH DEPT).

The Fourth Department, reversing Family Court and ordering a new custody hearing, determined Family Court did not conduct an adequate inquiry before accepting mother’s waiver of the right to counsel. The issue was appealable despite mother’s default: At the mother’s initial appearance, Family Court advised the mother that she had the right to counsel, and […]

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THE RESPONDENT CORRECTION OFFICER PARTICIPATED IN A GANG ASSAULT ON AN INMATE WHICH RESULTED IN THE INMATE’S DEATH; THE CORRECTION OFFICER WAS ACQUITTED OF CRIMINAL CHARGES; THE NY STATE POLICE BROUGHT THIS PROCEEDING SEEKING AN “EXTREME RISK PROTECTION ORDER” (ERPO) WHICH PROHIBITS RESPONDENT FROM POSSESSING FIREARMS; SUPREME COURT DENIED THE PETITION; THE FOURTH DEPARTMENT GRANTED IT (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined Supreme Court should have issued an “extreme risk protection order” (ERPO) which preclude the respondent correction officer from possessing firearms. The respondent was involved in a gang assault on an inmate which caused the inmates death. The respondent had been acquitted of the related criminal charges: … [T]he […]

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ALTHOUGH THE DEFENDANT COULD HAVE BEEN ARRESTED AT THE TIME OF THE SEARCH OF HIS PERSON, HE WAS NOT, IN FACT, UNDER ARREST; THEREFORE THE KEY FOB AND THE FIREARM FOUND IN DEFENDANT’S VEHICLE SHOULD HAVE BEEN SUPPRESSED; AN APPELLATE COURT CANNOT AFFIRM ON ANY ALTERNATIVE BASIS (FOURTH DEPT).

The Fourth Department, suppressing the firearm found in defendants vehicle, determined the search of defendant’s person, during the key fob for the vehicle was seized, was not a valid search incident to arrest. Although there may have existed probable cause to arrest defendant at the time of the search, the defendant had not yet, in […]

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PLAINTIFF, AN EMERGENCY MEDICAL TECHNICIAN (EMT), AFTER A COMPLAINT MADE BY A PATIENT TO THE DEFENDANT DEPARTMENT OF HEALTH, WAS SERVED WITH A NOTICE OF HEARING AND A STATEMENT OF CHARGES INDICATING HIS EMT LICENSE COULD BE REVOKED; PLAINTIFF SOUGHT A DECLARATION HE WAS ENTITLED TO A JURY TRIAL PURSUANT TO THE US AND NY CONSTITUTIONS; SUPREME COURT AGREED BUT THE THIRD DEPARTMENT REVERSED (THIRD DEPT). ​

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Mcshan, rejected plaintiff’s argument that he was entitled to a jury trial pursuant to the Seventh Amendment of the US Constitution, or, alternatively pursuant to Article I, section 2 of the NY Constitution. Plaintiff is an Emergency Medical Technician (EMT) who responded to […]

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MOTHER, WHO NOW RESIDES IN NEW YORK, MOVED TO MODIFY A TEXAS CUSTODY ORDER; BECAUSE TEXAS DID NOT CEDE JURISDICTION AND FATHER RESIDES IN TEXAS, FAMILY COURT DID NOT HAVE JURISDICTION; ALTHOUGH FAMILY COURT COULD HAVE EXERCISED TEMPORARY EMERGENCY JURISDICTION AND COMMUNICATED WITH THE TEXAS COURT, IT DID NOT (FIRST DEPT).

The First Department, reversing Family Court, in a full-fledged opinion by Justice Gesmer, determined the judge did not have jurisdiction to grant mother’s petition to modify custody. The original custody order was issued in Texas, where father resides. Mother and child, with the permission of the Texas court, now reside in New York: This case […]

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THE NEGOTIATED PLEA TO A MISDEMEANOR INFORMATION WAS VACATED AND THE DISMISSAL OF THE FELONY CHARGES WAS REVERSED; THE INFORMATION WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT DID NOT ALLEGE EVERY ELEMENT OF THE CHARGED OFFENSE, HERE THE OPERABILITY OF THE FIREARM; THE FELONY CHARGES WERE REINSTATED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, reversing the Appellate Term, over a two-judge dissent, determined the misdemeanor information to which defendant pled guilty was jurisdictionally defective in that it did not allege every element of the offense, here the operability of the firearm: At arraignment, the People stated that while […]

A HEARING REGARDING A REDUCED SENTENCE PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) CANNOT BE WAIVED AS A CONDITION OF A PLEA AGREEMENT (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, over a concurring opinion and a three-judge dissent, determined the hearing regarding a reduced sentence pursuant to the Domestic Violence Survivors Justice Act (DVSJA) cannot be waived as part of a plea agreement: The issue on appeal is whether, as […]

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