This case, which was not affected by the 2010 amendment to Family Court Act section 451(2)(a), includes a clear discussion of the criteria for an upward modification of a child support obligation where a party is seeking to modify “a child support provision derived from an agreement or stipulation incorporated but not merged into a […]
A finding of neglect based upon the respondent’s allowing the mother of the children to drive with the children when she was intoxicated (.10%) was affirmed by the Third Department. Matter of Darcy Y., 514430 Third Dept. 2-14-13
In a case based upon allegations the defendant assaulted his wife in a jealous rage, the trial judge allowed evidence of a prior crime to prove the “identity” of the perpetrator pursuant to the Molineux rule. The Second Department, in a prior decision, reversed the conviction finding that the perpetrator’s identity was not an issue […]
Because the defendant resembled a “mug shot” of a wanted person, the police had the right to approach him to request information. Because the defendant was in an area the wanted person was known to frequent, the police had the common-law right to inquire. The defendant’s flight provided reasonable suspicion to pursue and stop him. […]
The Second Department determined the “zone of danger” theory of recovery for witnessing the death of someone in the plaintiff’s “immediate family” did not allow recovery for witnessing the death of a man, not plaintiff’s biological father, who was the only person plaintiff had ever known as a father figure. Thompson vs Dhaiti, 2011-11215, Index […]
When an insured settles with a tortfeasor in violation of a condition requiring his or her insurer’s written consent to settle, and fails to preserve the insurer’s subrogation rights, the insurer is prejudiced, and the insured is prohibited from asserting a claim for underinsured motorist benefits …”. Matter of Travelers Home and Marine Insurance Company […]
In a prison disciplinary proceeding, the hearing officer’s refusal to provide the inmate with the instructions for the operation of the machine which was used to test his urine for the presence of drugs required annulment of the determination the prisoner had used a controlled substance. Matter of Marshall vs Fischer, 2012-01538, Index No. 6260/11 […]
Proof was insufficient to demonstrate “drug or alcohol abuse” under the SORA guidelines. The SORA assessment was therefore improper. People vs. Palmer, People vs Long, Nos. 14 & 15, CtApp, 2-12-13
…[T]he consecutive nature of defendant’s sentence pursuant to Penal Law [section] 70.25 (2-a) is a collateral consequence of his conviction. …[T]he failure of the trial court to address the impact of Penal Law [section] 70.25 (2-a) during the plea colloquy does not require vacatur of the plea.” People vs Belliard, No. 5, CtApp 2-12-13
The Fourth Department reversed defendant’s conviction because his attorney had a conflict of interest. The attorney had represented someone who was heard on a recording talking to the defendant. The People sought to introduce the recording in evidence to prove defendant’s motive and intent for the charged burglary. The Fourth Department explained the procedure and […]
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