In a full-fledged opinion by Justice Leventhal, the Second Department affirmed the suppression of a chemical breath-test because the police did not inform the defendant her attorney had appeared in the case before the test was administered. As Justice Leventhal described the “right to counsel” issue and holding: This case calls upon us to address […]
The Second Department reversed the motion court because a motion for a downward departure (SORA) pursuant to Correction Law 168-o(2) requires a hearing: By notice of motion dated September 21, 2010, the defendant moved pursuant to Correction Law § 168-o(2) for a downward modification of his risk level classification under the Sex Offender Registration Act […]
In reversing a larceny conviction, the Second Department explained that allowing the jury to consider the Lien Law presumption (where use of funds held in trust for purposes other than those of the trust can constitute larceny) as mandatory, rather than permissive, shifted the burden of proof to the defendant: Pursuant to Lien Law article […]
In upholding the trial court’s ruling that the proffered reasons for the exclusion of certain white jurors were pretextual, the Second Department wrote: In Batson v Kentucky (476 US 79, 94-98), the United States Supreme Court formulated a three-step test to assess whether peremptory challenges have been used to exclude potential jurors on the basis […]
The Second Department described the criteria for a downward departure from the SORA presumptive risk level as follows: A court has the discretion to downwardly depart from the presumptive risk level in a proceeding pursuant to the Sex Offender Registration Act (Correction Law art 6-C; hereinafter SORA) only after a defendant makes a twofold showing. […]
After a juror was discharged for misconduct, the People stated they did not want to go forward with the jury deliberations. The defense, however, wanted to continue to verdict with the remaining 11 jurors. The trial court ordered a mistrial. The defendant brought an Article 78 proceeding seeking to prohibit a second trial on double […]
The Second Department affirmed the motion court in finding that a question of fact had been raised about whether there was a “special relationship” between the insured and the insurance broker such that the insured could rely on the broker’s expertise and duty to advise: “While it is certainly better practice for an insured to […]
In reversing the verdict for the defendant in a “breach of an employment contract” and “Labor Law article 6” action, the Second Department explained the proof requirements for both as follows: The elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff’s performance under […]
A forum-selection clause in a stipulation required any action necessary to enforce the terms of the stipulation be brought in Surrogate’s Court, Queens County. When a proceeding to discharge a mortgage, which was related to the stipulation, was brought in Supreme Court, Queens County, the court dismissed the proceeding with leave to renew in Surrogate’s […]
The plaintiff sued the defendant alleging the defendant conspired with plaintiff’s former husband to file a false report with the police, resulting in plaintiff’s arrest and criminal prosecution (civil conspiracy). In determining the motion court should have granted defendant’s motion for summary judgment, the Second Department wrote: “Although an independent cause of action for civil […]
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