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Entries by Bruce Freeman

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Admission of Cell-Phone-Location Data Did Not Required Frye Hearing; Prior Crime Evidence Properly Admitted to Prove Defendant’s Identity as Perpetrator of Charged Crime

In a full-fledged opinion by Justice Mastro, the Second Department affirmed the defendant’s murder conviction.  One piece of evidence against the defendant was location-data based on the use of defendant’s cell phone.  The Second Department determined there was no need for a Frye hearing before expert testimony about cell-phone location was presented because no novel […]

Judge’s Failure to Comply with CPL Re: Response to Jury Note Required Reversal

The Second Department held that the trial court’s failure to comply with Criminal Procedure Law 310.10 with respect to responding to a note from the jury concerning accomplice liability required reversal (despite the absence of an objection): A new trial is required due to the trial court’s failure to meaningfully comply with CPL 310.10. During […]

(Harmless) Error for Prosecutor to Ask If Other Witnesses’ Testimony Was Untrue and to Ask About Defendant’s Silence Upon Apprehension

The Second Department noted that it was error for the prosecutor to ask defendant on cross-examination whether testimony which contradicted defendant’s was untrue, and to ask about his silence after he was apprehended. The errors were deemed harmless, however: The defendant correctly contends that the prosecutor improperly asked him on cross-examination whether a prosecution witness’s […]

Decedent’s Acknowledgment of Paternity of Nonmarital Child Precluded Objections to Distribution by Sibling

In finding that the decedent’s brother did not have standing to raise objections to the distribution of an estate because the decedent had sufficiently acknowledged paternity of at least one nonmarital child, the Second Department wrote: …[T]he appellant, in his capacity as a sibling of the decedent, had no standing to raise objections unless he […]

Effect of Ambiguity in Easement Explained

In finding there were triable issues of fact, the Second Department explained the effect of ambiguity in the wording of easements: The extent of an easement claimed under a grant is generally determined by the language used in the grant … . However, where the language of the grant is ambiguous or unclear, the court […]

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No Ambiguity in Contract; No Resort to Extrinsic Evidence

In affirming the grant of defendant’s motion for summary judgment in a contract action, the Second Department explained the analytical criteria concerning whether extrinsic evidence should be considered: “[W]hen parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms. Evidence outside the four […]

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Failure to File Retainer Agreement In Medical Malpractice Action Remedied Nunc Pro Tunc

The Second Department determined Supreme Court correctly granted leave to file a retainer agreement in a medical malpractice action, nunc pro tunc.  The attorney (Siegel) was the second attorney retained in the matter (to handle the trial).  After the case settled, the second attorney sued the first (Glassman) over the amount of the fee.  The […]

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Abuse Not Demonstrated; Conflicting Expert Testimony

In upholding Family Court’s determination that petitioner had not demonstrated the child (Sincerity) was abused when the child was in the custody of the mother, in the face of expert testimony the child suffered forceful blunt trauma within 24 hours of death, the Second Department explained: The Family Court Act defines an “[a]bused child,” inter […]

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