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Entries by Bruce Freeman

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Proof of Normal Notification Procedure Sufficient to Demonstrate Defendant Was Notified of Lead-Paint-Injury Exclusion in Policy

Over a two-justice dissent, the Fourth Department determined defendant (Donnelly) was notified of an amendment to his insurance policy which disclaimed coverage for injury related to the presence of lead paint (and therefore plaintiff-insurer was not obligated to defend or indemnify defendant in a lead-paint-injury case).  The court also determined that the lead-paint-injury exclusion did […]

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Prior Stipulation Based Upon Inaccurate Information Properly Vacated

In a divorce proceeding, the Fourth Department upheld Supreme Court’s vacating the child support and maintenance provisions of a prior stipulation, finding that the wife had not disclosed all of her assets and earnings at the time the stipulation was entered.  The Fourth Department also upheld $50,000 of imputed annual income assigned to the wife […]

Visitation Details Should Not Have Been Left to Supervising Agency

The Fourth Department determined Family Court erred by delegating its authority with respect to the visitation schedule and sibling visits to the agency supervising the mother’s visitation: …[T]he court “erred in failing to set a supervised visitation schedule, implicitly leaving it to the supervisor to determine” … .  By ordering only that visitation “shall take […]

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“Patient/Visitor Occurrence Report” Not Statutorily Privileged in Malpractice Action Against Hospital

The Fourth Department determined Supreme Court properly allowed plaintiffs, in a medical malpractice action, to see a “patient/visitor occurrence report” generated by defendant hospital.  The court noted that the report is subject to the privilege set forth in Education Law 6527 (3), but the hospital did not establish the report was generated in connection with […]

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Representation by Counsel on Unrelated Matter Recently Concluded by Conviction Did Not Preclude Defendant from Validly Waiving Right to Counsel

The Fourth Department noted that the representation of defendant by counsel in an unrelated matter which had just been disposed of by conviction did not prevent defendant from validly waiving his right to counsel when interviewed by the police about the instant charge: “Under New York’s indelible right to counsel rule, a defendant in custody […]

Maximum Sentence Deemed Unduly Harsh and Severe

The Fourth Department determined the imposition of the maximum sentence for criminal possession of a weapon in the second degree (15 years) was unduly harsh and severe: Defendant has no prior felony convictions, and he served four years in the United States Navy, receiving an honorable discharge.  Also, it is undisputed that defendant did not […]

Temporary Lawful Possession of Weapon Defense Disproved/Justification Defense in Context of Criminal Possession of a Weapon Explained

The Fourth Department determined the evidence was sufficient to disprove defendant’s defense of temporary and lawful possession of a weapon, and explained how the justification defense relates to criminal possession of a weapon: Even if, as defendant contends, he originally acquired the gun by disarming his alleged assailant in the course of a robbery, we […]

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Prosecutorial Misconduct Noted (Conviction Upheld However)

In affirming defendant’s conviction, the Fourth Department noted its agreement with defendant’s assertions of prosecutorial misconduct: We agree with defendant that it was improper for the prosecutor to remark that a witness was afraid of defendant inasmuch as that was not a fair comment on the evidence … .  We further agree with defendant that […]

Shooting Accomplished With Two Weapons Constituted a Single Continuing Offense/Indictment Not Duplicitous

Over a dissent, the Fourth Department determined a shooting accomplished with more than one weapon did not constitute two distinct offenses, but rather constituted a continuing offense, and, therefore, the indictment was not duplicitous: It is well established that, “ ‘[w]here an offense may be committed by doing any one of several things, the indictment […]

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