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Entries by Bruce Freeman

Criteria for Reduction or Termination of Father’s Child Support Obligations Not Met/No Showing Wife Interfered with Access to Child/No Showing of Unjustified Abandonment by Child

The Third Department affirmed Family Court’s determination that the father’s child support obligations for his 18-year-old son should not be reduced or terminated.  The court described the relevant criteria: Generally, a parent in this state is obligated to support his or her child until the child turns 21 (see Family Ct Act § 413 [1] […]

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Criteria for Termination of Parental Rights Based Upon Abandonment Explained

The Third Department determined Family Court properly terminated respondent’s parental rights after a finding of abandonment: Despite respondent’s intermittent homelessness, difficulties in arranging transportation, and lack of finances and accessible phone service, at some points during the six-month period she had housing and employment.  Thus, Family Court found that it would not have been impossible […]

Amendment Allowing the Consideration of Incarceration as a Reason for a Downward Support Modification Is Not Applied Retroactively

The Third Department affirmed Family Court’s finding that the amendment to Family Court Act section 451 (which allows a court to consider incarceration as a reason for a downward support modification) does not apply retroactively: Before the 2010 amendment to Family Ct Act § 451, a parent’s loss of income resulting from incarceration generally was […]

Grandmother Had Standing to Request Visitation/Visitation Properly Granted

The Third Department affirmed Family Court’s determination that grandmother had standing to petition for visitation with the child (Dakota) and that such visitation was in the best interests of the child. With respect to the standing criteria, the Third Department wrote: Family Court correctly determined that petitioner established standing to petition for visitation with Dakota. […]

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Resentencing to a Term of Imprisonment with a Maximum Greater than the Initial Sentence Violates Double Jeopardy Principles

The Third Department determined resentencing defendant to a term of imprisonment with a maximum greater than the initial sentence violated double jeopardy principles: County Court violated double jeopardy principles when it imposed on defendant an aggregate sentence with a maximum of more than 10 years in prison.  “[T]he key to double jeopardy analysis of a […]

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Revocation of Parole Based Upon Uncharged Assault Okay/Presence of Assault Victim at Revocation Hearing Excused

The Third Department determined petitioner’s parole was properly revoked even though the victim of the uncharged assault which triggered the revocation did not testify at the hearing: Petitioner argues that he improperly was denied the opportunity to confront and cross-examine the victim.  While a “strong preference” for confrontation and cross-examination exists in parole revocation proceedings, […]

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Suppression Hearing Should Have Been Held to Determine Whether Property Seized by Use of Excessive Force (Taser)

After determining defendant’s request to represent himself at trial was properly granted, the Third Department noted that a suppression hearing should have been held to determine whether excessive force (taser) was used to retrieve a bag of cocaine from defendant’s mouth: As for the cocaine recovered from defendant’s mouth after he was tased more than […]

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Defendant Entitled to New Counsel After Defense Attorney Took a Position Adverse to Defendant’s Pro Se Motion to Withdraw Guilty Plea

The Third Department determined defendant should have been provided with new counsel after defense counsel took a position adverse to defendant’s pro se motion to withdraw his guilty plea: We agree with defendant’s contention that he should have been assigned new counsel to pursue his motion to withdraw the guilty plea because his counsel was […]

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Hotel Room Occupancy Tax On Online Hotel Reservations Okay

The Court of Appeals, in a full-fledged opinion by Judge Rivera, held that a New York City hotel room occupancy tax (Local Law 43), applicable to online travel companies through which customers make hotel reservations, was constitutional (reversing the Appellate Division): Online travel companies like the plaintiffs have successfully reshaped the way people book travel.  […]

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