In annulling the determination because the inmate’s behavior did not warrant his removal from the hearing, the Third Department wrote: It is well settled that “[a]n inmate has a fundamental right to be present during a prison disciplinary hearing unless he or she is excluded for reasons of institutional safety or correctional goals” … . […]
In affirming Supreme Court’s annulment of the determination and grant of a new hearing because the recording of the proceeding was incomplete, the Third Department noted that the criteria for expungemet had not been met: It is well settled that “[e]xpungement will be ordered only where there has been a showing that ‘(1) the challenged […]
The Third Department determined the trial court should not have dismissed the count of the indictment which charged defendant with depraved indifference murder of a child. While acknowledging the prosecution may have difficulty proving the charge at trial, the court determined that a logical inference from the grand-jury proof was that the injuries defendant inflicted […]
The Second Department determined a decree (admitting decedent’s will to probate) issued by Surrogate’s Court should have been vacated on the ground that decedent’s daughter (Ross) was never properly served with the citation and, therefore, the court never obtained personal jurisdiction over her. The Second Department explained that Surrogate Court should have fashioned a method […]
The Second Department determined the prosecutor should not have been allowed to introduce at trial statements made by the defendant in plea negotiations (the error was deemed harmless however): The defendant and the People executed an agreement, whereby they agreed that the People could introduce those statements against the defendant at a trial, inter alia, […]
The Second Department determined Padilla v Kentucky, 559 US 356, which held an attorney’s failure to inform his or her client of the immigration consequences of a plea constituted ineffective assistance of counsel, should not be applied retroactively under the New York Constitution: In People v Pepper (53 NY2d 213, cert denied sub nom. New […]
In a case with sharp factual disputes, the Second Department determined Family Court should not have decided the issue of guardianship without the aid of forensic evaluations: The Family Court erred in deciding the issue of guardianship without the aid of forensic evaluations of Stephanie, Shanika, and Jada. Although forensic evaluations are not always necessary, […]
The Second Department determined mother did not stipulate to the order of reference (referring the custody and visitation proceeding to a referee) in the manner required by CPLR 2104. Therefore, although the order of reference authorized the referee to “hear and determine the parties’ rights to custody … and visitation…,” absent the parties’ consent to […]
The Second Department determined Family Court had properly denied father’s petition for permission to relocate to North Carolina. A prior consent order had awarded joint legal custody with primary physical custody to the father. The father, who is in the military, was transferred from West Point to Fort Bragg in North Carolina. The court explained […]
The Second Department determined Family Court correctly awarded visitation with the father in Kentucky for the entire summer, but should not have awarded visitation with the father in Kentucky for school breaks and three-day weekends throughout the year: In remitting the matter for re-working the The visitation, the court wrote: The provision of the visitation […]
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