The Third Department determined that the initial detention of the defendant by the police, with guns drawn, did not amount to an illegal arrest: Given the extremely short period of time between the report of the armed robbery and the arrival of the officers on the scene, defendant’s presence alongside the residence and the absence […]
Over a substantial dissent by Judge Rivera, the Court of Appeals, in a full-fledged opinion by Judge Piggot, determined a vehicle search after a DWI arrest, in which an illegal weapon was found, was a valid inventory search. The defendant had argued that the removal of seat panels that were askew and a speaker system […]
The Court of Appeals determined that defendant’s murder conviction should stand, even though he was questioned in violation of his right to counsel: While in jail for a violation of probation (VOP), defendant was twice questioned by police about the victim’s disappearance, the second time after her body had been discovered. Counsel was not present. […]
In affirming the vacation of defendant’s conviction, the Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the defendant did not receive effective assistance of counsel. The People’s case rested on the defendant’s statement. The defense was based on the defendant’s mental weakness, which undermined the voluntariness of the statement. Yet the defense […]
In determining petitioner’s motion was not a motion to resettle because it sought to amend, rather than merely clarify, a judgment, the Third Department explained: [A motion to resettle] is designed “not for substantive changes [in, or to amplify a prior decision of, the court], but to correct errors or omissions in form, for clarification […]
The Third Department explained the appellate review and damages-evidence standards for small claims actions as follows: Appellate review of small claims is limited to determining whether “substantial justice has not been done between the parties according to the rules and principles of substantive law” (UCCA 1807; …); only a clearly erroneous determination will be overturned […]
The Third Department reversed Supreme Court’s annulment of a regulation that permitted out-of-competition drug testing of harness racehorses pursuant to the Racing, Pari-Mutuel Wagering and Breeding Law. In a lengthy decision, the Third Department went through each of Supreme Court’s findings, reversing all but one which annulled the portion of the regulation prohibiting all “protein […]
The Third Department upheld the NYS Tax Appeals Tribunal’s determination that the petitioner, Brooklyn Union Gas Company, was not entitled to an investment tax credit (ITC) because it was in the business of delivering natural gas, not producing or processing a product as those terms are construed for an ITC under the Tax Law: The […]
The Third Department upheld Supreme Court’s determination that the owners of property which abutted a street or lane did not privately own the lane, because no map was referenced in the relevant deeds, and because of the public use of the lane for more than ten years and maintenance of the street by the village: […]
In the course of a lengthy decision dealing with many issues raised by a defamation/stigma-plus proceeding brought by a school district employee against a school district, the Third Department explained qualified privilege in this context. The plaintiff was a coach whose boyfriend [Broxmeyer] had raped a student at another school. Plaintiff alleged that defendant Arbes, […]
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