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Entries by Bruce Freeman

Resentencing (Re: Postrelease Supervision) of Defendants Who Have Completed Determinate Sentence But Are Still Serving Aggregate Sentence Does Not Violate Double Jeopardy

In a full-fledged opinion by Judge Rivera, the Court of Appeals determined defendants who have completed the determinate sentence for which mandatory postrelease supervision was not imposed but have not completed their aggregated sentences under Penal Law 70.30 can be resentenced to postrelease supervision without violating the Double Jeopardy Clause: In these unrelated cases, each […]

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Orange County Executive Did Not Have Authority to Terminate County Employees Before County Legislature Eliminated Positions

The Second Department reversed Supreme Court and determined the Orange County Executive did not have the authority to terminate county employees before the legislature acted to removed funding for the positions: The doctrine of “[l]egislative equivalency requires that a position created by a legislative act can only be abolished by correlative legislative act”…. Pursuant to […]

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Hospital Can Be Vicariously Liable for Actions of Non-employee Physician Under Apparent or Ostensible Agency Theory

The Second Department explained when a hospital can be held vicariously responsible, under a theory of apparent or ostensible agency, for the actions of non-employee physicians who provide medical services at the hospital: “A hospital [is] responsible to a patient who sought medical care at the hospital, . . . rather than from any particular […]

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Article 78 Petition in Nature of Prohibition Against Judge and District Attorney Granted

The Second Department explained the criteria for an Article 78 action (against a judge and district attorney) in the nature of prohibition.  In this case Supreme Court had ordered defendant to appear for resentencing after the Appellate Division had ruled without remitting the matter to Supreme Court for further proceedings.  The Second Department granted the […]

Criteria for Derivative Neglect Finding Explained (Evidence Insufficient)

The Second Department, in reversing Family Court’s finding, explained the criteria for a finding of derivative neglect: …[A] finding of sexual abuse of one child does not, by itself, establish that other children in the household have been derivatively abused or neglected …. The focus of the inquiry to determine whether derivative neglect is present […]

Standing Requirements for Grandparent Seeking Visitation Explained

The Second Department explained the standing requirements for a grandparent seeking visitation with a grandchild: In a grandparent visitation proceeding, “the burden of establishing standing lies with the grandparent and it is conferred by the court, in its discretion, only after it has examined all the relevant facts’”…. In determining whether grandparents have standing or […]

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