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Entries by Bruce Freeman

Emergency Doctrine Explained; Admissibility of Deposition Excerpts Re: Summary Judgment Motion Explained; Bicyclist Injured When Path Allegedly Blocked to Protect Child

The Second Department reversed Supreme Court’s grant of summary judgment to the defendants. The plaintiff-bicyclist was injured when, it is alleged, one of the defendants stepped into the bicyclist’s path to protect children who were crossing the street. The court explained the admissibility requirements for excerpts of deposition testimony and an unsworn police report, as […]

Concurrent, Not Consecutive, Sentences Should Have Been Imposed Where “Actus Reus” Was a Single, Inseparable Act

The Second Department corrected a sentence which illegally imposed consecutive, as opposed to concurrent, terms of imprisonment.  The defendant lured a 16 year-old girl to his apartment where they had consensual sex.  Then defendant then allowed the co-defendants to go into the bedroom where they had sex with her.  The court explained: The imposition of […]

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Jury Should Have Accepted Extreme Emotional Disturbance Affirmative Defense

In a full-fledged opinion by Justice Cohen, over a dissent, the Second Department determined the jury’s failure to reduce the defendant’s conviction to manslaughter because he was under the influence of extreme emotional disturbance when he killed his girlfriend was against the weight of the evidence.  The opinion describes the nature and causes of the […]

Sentencing Court Can Correct Illegal Sentence If Within Initially-Stated Range

The Second Department explained that the trial court can properly resentence a defendant to correct an illegal sentence as long as the new sentence is within the initially-stated range.  Here, after sentencing defendant to an indeterminate term of imprisonment, the court realized it was required to sentence defendant to a determinate term and postrelease supervision: […]

Failure to Inform Defendant of the Specific Period of Postrelease Supervision Applicable to the Offense Defendant Pled To Required Vacation of Sentence

Over a dissent, the Second Department determined the failure to advise the defendant of the specific postrelease-supervision aspect of his sentence at the time of the entry of the plea pursuant to a plea agreement required that the sentence be vacated, even though defendant was informed his maximum sentencing exposure included a period of postrelease […]

Question of Fact Whether Initial Broker Entitled to Commission

The Second Department, over a dissent, determined there was a question of fact about whether a real estate broker was entitled to a commission because it generated a chain of circumstances that proximately led to the sale: To prevail on its cause of action to recover a commission, the plaintiff is required to prove, inter […]

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In Spite of Settlement of Underlying Action, the Legal Malpractice Case Alleging Failure to Adequately Investigate Can Go Forward

Plaintiff was attacked and injured in the lobby of his building.  He hired an attorney to bring a premises liability action.  The action was ultimately settled, but plaintiff brought a legal malpractice action against the defendant attorney alleging the attorney did not adequately investigate the security of the building.  The First Department determined that plaintiff, […]

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