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THE JUDGE’S QUESTIONING OF WITNESSES, GUIDANCE OF THE PROSECUTION, AND OBVIOUS BIAS IN FAVOR OF THE PROSECUTION DEPRIVED DEFENDANT OF A FAIR TRIAL (SECOND DEPT). ​

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the evidence supported the convictions but the judge’s questioning of witnesses and obvious bias in favor of the prosecution deprived defendant of a fair trial. The issue was not preserved for appeal but the Second Department considered it in the interest of justice: […]

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THE SECOND DEPARTMENT REVERSED SUPREME COURT AND FOUND THERE WAS “GOOD CAUSE” FOR THE 27-YEAR DELAY BETWEEN THE HOMICIDE AND DEFENDANT’S ARREST FOR MURDER (SECOND DEPT).

The Second Department, reversing Supreme Court, in a detailed full-fledged opinion by Justice Wan, determined defendant’s due process rights were not violated by a 27-year delay between the homicide and defendant’s arrest for murder. The opinion is necessarily fact-specific. The facts were analyzed using the “Taranovich factors” for determining whether a defendant’s right to a […]

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THE TOWN ZONING BOARD OF APPEALS MADE NO ATTEMPT TO ACCOMMODATE THE PROPOSED RELIGIOUS USE OF A SINGLE FAMILY HOME; MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Supreme Court and remitting the matter to the town zoning board of appeals, determined the board made no attempt to accommodate the application for religious use of a single-family home. The application sought to change the use of the property from “one family” to “place of worship accessory to one family” […]

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THE YOUTH PART OF COUNTY COURT DID NOT ABUSE ITS DISCRETION IN FINDING THAT “EXTRAORDINARY CIRCUMSTANCES” WARRANTED GRANTING THE PEOPLE’S MOTION TO PREVENT REMOVAL OF THE 17-YEAR-OLD’S PROSECUTION TO FAMILY COURT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, affirming the Appellate Division, over a three-judge dissenting opinion, determined the youth part of County Court did not abuse its discretion in granting the People’s motion to prevent removal of the 17-year-old defendant’s prosecution to Family Court. Under the State’s Raise the Age legislation, […]

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THE FINDING THAT MOTHER HAD ABUSED THE CHILDREN WAS BASED ON VIDEO EVIDENCE PURPORTING TO SHOW MOTHER’S EX-BOYFRIEND ABUSING ONE OF THE CHILDREN; THE COURT OF APPEALS REVERSED, FINDING THAT THE VIDEO EVIDENCE WAS NOT AUTHENTICATED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, determined the finding that mother had abused her daughter and son based entirely on videos purportedly showing mother’s former boyfriend abusing one of the children required reversal because the foundation evidence offered for the videos was insufficient: There was a three-judge dissenting opinion, and […]

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DEFENSE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO REQUEST A JURY CHARGE FOR “IMPAIRMENT” WHICH WAS APPLIED BY THE THIRD DEPARTMENT IN A RECENT VEHICULAR MANSLAUGHTER CASE; IT WAS NOT CLEAR THE “IMPAIRMENT” CHARGE IN THE VEHICULAR MANSLAUGHTER CASE WAS APPLICABLE IN THE INSTANT “DRIVING WHILE ABILITY IMPAIRED BY DRUGS” CASE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, determined that defense counsel was not ineffective for failing to request a jury instruction based upon a recent Third Department appellate decision [People v Caden N, 189 AD2d at 90-91] which was not clearly applicable. The Third Department had held that the standard for […]

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PLAINTIFF’S CLAIMS OF DISCRIMINATORY NON-PROMOTION AND TERMINATION PURSUANT TO THE NYC AND NYS HUMAN RIGHTS LAW WERE SUFFICIENT AT THE PLEADING STAGE AND SHOULD NOT HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the plaintiff’s claims of discriminatory non-promotion and termination pursuant to the NYS and NYC Human Rights Law were sufficient for the pleading stage and should not have been dismissed: Plaintiff’s allegation that he, an African American, was terminated from his job by defendant, his employer, after making one […]

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THE STANDARD FOR “IMPAIRMENT BY ALCOHOL AND DRUGS” IS THE SAME AS FOR “IMPAIRMENT BY ALCOHOL” IN THE VEHICLE AND TRAFFIC LAW’S DWI SCHEME; THE THIRD DEPARTMENT’S APPLICATION OF THE HIGHER “INTOXICATION” STANDARD TO “IMPAIRMENT BY ALCOHOL AND DRUGS” WAS REJECTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the standard for “impairment” in the context of “aggravated driving while ability impaired by a combination of drugs and alcohol” is the same as for “impairment by alcohol.” The Court of Appeals affirmed the Fourth Department’s rejection of the Third Department’s application of […]

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THE ACCUSATORY INSTRUMENT CHARGING DEFENDANT WITH DRIVING WHEN HIS ABILITY WAS IMPAIRED BY MARIJUANA WAS FACIALLY SUFFICIENT; TWO-JUDGE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a two-judge dissenting opinion, determined that the accusatory instrument charging defendant with driving while his ability was impaired by marijuana was facially sufficient. The court noted that the Report of Refusal (re: a chemical test for drugs) could not be considered and that, […]

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IN 2024, ERLINGER V US HELD THAT A JURY MUST DETERMINE WHETHER A LOOKBACK PERIOD RELEVANT TO ENHANCED SENTENCING HAS BEEN TOLLED; BECAUSE THE SENTENCING COURT DETERMINED THAT ERLINGER APPLIED, AND BECAUSE THE SENTENCING COURT DID NOT HAVE THE POWER TO EMPANEL A JURY FOR RESENTENCING, DEFENDANT WAS NOT SENTENCED AS A PERSISTENT VIOLENT FELONY OFFENDER; ON APPEAL THE MAJORITY HELD THAT THE ERLINGER ISSUE (I.E. WHETHER ERLINGER APPLIED) WAS NOT PRESERVED FOR APPEAL BY THE PEOPLE BECAUSE THEY EXPRESSLY DECLINED TO ARGUE IT; THE DISSENT ARGUED THE ISSUE HAD BEEN PRESERVED AND THE COURT SHOULD HAVE CONSIDERED IT (FIRST DEPT). ​

The First Department, over a comprehensive dissent, affirming Supreme Court, determined the People did not preserve the argument that the defendant should have been sentenced as a persistent violent felony offender (PFV) because Erlinger v US, 602 US 821, did not apply. The sentencing court determined Erlinger did apply. Because Erlinger held that a jury […]

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