The Fourth Department annulled a determination finding petitioner had violated inmate rules which was based entirely on the contents of the inmate’s mail (opened and read by prison authorities). The Fourth Department wrote: Pursuant to 7 NYCRR 720.4 (f) (2), the prison superintendent must request documentation from the person seeking authority to open incoming mail […]
The Fourth Department determined that “disorderly conduct” as a family offense does not require the conduct to take place in public: Contrary to respondent’s contention, petitioner met her burden of establishing by a preponderance of the evidence that respondent committed the family offense of disorderly conduct … . Although respondent’s conduct did not take place […]
The Fourth Department determined a choice of forum clause must be enforced and noted the difference between choice of forum and choice of law: Supreme Court properly granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (1). According to the “Standard Terms and Conditions” of the agreement …, “[a]ny litigation arising in […]
The Fourth Department determined Supreme Court erred in transferring a case to another venue sua sponte and in determining that an action seeking to annul the denial of a variance affected real property within the meaning of CPLR 507: Petitioner commenced this CPLR article 78 proceeding seeking to annul two determinations of respondent made in […]
In determining the hospital’ petition for retention of a patient for involuntary psychiatric care should have been granted, the Second Department wrote: Paulina D. is a 23-year-old woman who suffers from severe anorexia nervosa. She has been at Elmhurst Hospital (hereinafter the Hospital) “continually” for 15 months. At one point during that period, Paulina D. […]
The Fourth Department noted the criteria for invalidating a stipulation to a record on appeal: It is undisputed … that plaintiff stipulated to settle the record … prior to seeking leave to reargue or renew and has not sought to be relieved from his stipulation … . Once plaintiff stipulated to the record on appeal, […]
The Fourth Department determined the People did not present sufficient evidence defendant targeted the victim and the SORA court did not set forth the relevant findings of fact and conclusions of law. Therefore the SORA score was reduced by 20 points: At the SORA hearing, the People had “the burden of proving the facts supporting […]
Although finding it to be harmless error, the Fourth Department determined the jury should not have been allowed to hear portions of defendant’s grand jury testimony which included references to being on parole, being imprisoned and having sold drugs: We agree with defendant that County Court erred in failing to consider the appropriate factors when […]
The Fourth Department reversed a conviction finding the indictment was rendered duplicitous by the trial evidence: It is apparent from the record that the grand jury returned only a one-count indictment, having found the evidence of possession of the uncut cocaine insufficient to return a second count. The indictment was rendered duplicitous …because the People […]
The Fourth Department determined that the People’s notice of intention to offer Molineux evidence, provided during jury selection, and the Court’s Molineux ruling, made upon the completion of jury selection, was timely: According to defendant, the timing of the court’s Molineux ruling upon the completion of jury selection denied him the opportunity to explore the […]
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