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Entries by Bruce Freeman

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In a Sexual Abuse Proceeding—Effects of Victim’s Exercise of Privilege Against Self-Incrimination and Exclusion of Appellant During Testimony of Victim Explained

In a sexual abuse case, the Second Department affirmed Family Court’s finding of abuse and noted the effect of Judith C.Z.’s exercise of her privilege against self-incrimination and the effect of the appellant’s exclusion from the courtroom during the testimony Judith C. Z.: The failure of [a witness] to testify does not permit the trier […]

Dispositional Hearing Should Have Been Held After Neglect Finding

In a neglect proceeding, the Second Department noted a dispositional hearing was required before entering a dispositional order: …Family Court erred in issuing the orders of disposition without first conducting a dispositional hearing (see Family Ct Act §§ 1045, 1047[a], 1052[a]…). “A dispositional hearing must be held as a condition precedent to the entry of […]

Funeral-Expense Award from NYS Crime Victims Board Should Not Have Been Reduced by 50% Based on the Victim’s Alleged Involvement in Criminal Activity

The Second Department determined that the reimbursement of funeral expenses from the NYS Crime Victims Board should not have been reduced by 50% on the ground that the victim engaged in conduct contributing to the crime.  The court wrote: … [G]eneral knowledge that narcotics sellers are subject to a greater risk of being violently murdered […]

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Primary Assumption of Risk Prohibited Suit by Student Softball Player Injured When Struck by the Ball

The Second Department determined an eighth-grade experienced softball player assumed the risk of being hit by the ball, noting that the supervisor’s temporary absence from the field was not the proximate cause of the injury.  The court provided a thorough explanation of the primary assumption of risk doctrine: Under the doctrine of primary assumption of […]

Elements of Several Computer Crimes Described

In a full-fledged opinion by Justice Saxe, the First Department affirmed defendant’s convictions for computer trespass, computer tampering, unlawful duplication of computer related material, and criminal possession of computer related material.  Defendant was on disability leave from his employer Time Warner when he used/installed software to gain access to passwords and log-in information.  The First […]

Denial of For Cause Juror Challenge Required Reversal

The First Department reversed defendant’s conviction because the trial court erroneously denied a “for cause” juror challenge: The court erred in denying defendant’s challenge for cause to a prospective juror who stated his belief and concern that he recognized defendant from his neighborhood, along with his fear that he would “run into” defendant or his […]

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