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Entries by Bruce Freeman

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THE BANK SUFFICIENTLY PROVED COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 IN THIS FORECLOSURE PROCEEDING; STRONG DISSENT (SECOND DEPT).

The Second Department, affirming summary judgment in favor of plaintiff in this foreclosure action, over a detailed dissent, determined plaintiff had demonstrated compliance with the RPAPL 1304 mailing requirements for the notice of foreclosure. The dissent argued the notice requirements were not strictly complied with. The decision is too detailed to fairly summarize here, but […]

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DEFENDANT’S DENIAL OF GUILT MADE WHEN HIS APPEAL WAS PENDING CANNOT BE USED AS THE BASIS FOR THE ASSESSMENT OF POINTS IN A SORA RISK-LEVEL PROCEEDING FOR “FAILURE TO ACCEPT RESPONSIBILITY” (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court in this SORA risk-assessment proceeding, determined defendant should not have been assessed 10 points for failure to accept responsibility because his denial of guilt was made when his appeal was pending: … [T]he court should not have assessed 10 points under risk factor 12 for failure to accept […]

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THE PROVISION OF THE MENTAL HYGIENE LAW WHICH ALLOWS TEMPORARY CONFINEMENT OF SEX OFFENDERS WITHOUT THE OFFENDER’S PARTICIPATION AT THE PROBABLE CAUSE STAGE IS CONSTITUTIONAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, affirming the Appellate Division, over a two-judge dissenting opinion, determined the procedure under the Mental Hygiene Law which allows the temporary confinement of sex offenders without the offender’s participation at the probable cause stage is constitutional: This appeal requires us to examine whether certain […]

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HUSBAND WAS IN THE NAVY FOR ABOUT NINE YEARS BEFOR MARRIAGE; DURING THE MARRIAGE HE LEFT THE NAVY AND JOINED THE FOREIGN SERVICE WHICH ALLOWED HIM TO “PURCHASE” CREDITS FOR HIS TIME IN THE NAVY TO AUGMENT HIS FOREIGN SERVICE PENSION; THE PORTION OF HIS PENSION ATTRIBUTABLE TO THE PRE-MARRIAGE SERVICE IN THE NAVY IS MARITAL, NOT SEPARATE, PROPERTY (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the Appellate Division, determined the portion of the husband’s pension which stemmed from his pre-marriage service in the Navy was marital, not separate, property: In this case, a couple used marital funds to augment the husband’s Foreign Service pension so that it included […]

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UNDER THE FACTS, THE PRO SE DEFENDANT WAS NOT DEPRIVED OF HIS RIGHT TO PUT ON A DEFENSE BY THE PEOPLE’S ACCESS TO HIS RECORDED JAIL PHONE CALLS; DEFENDANT EFFECTIVELY WAIVED HIS RIGHT TO COUNSEL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, affirming the Appellate Division, determined (1) the fact that the People had access to defendant’s recorded jail phone calls did not, under the facts, deprive the pro se defendant of his right to present a defense, and (2) the defendant effectively waived his right […]

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IN ORDER TO KNOWINGLY, VOLUNTARILY AND INTELLIGENTLY WAIVE THE RIGHT TO COUNSEL, THE DEFENDANT NEED NOT BE INFORMED OF HIS MAXIMUM SENTENCING EXPOSURE IN YEARS; THE “SPEEDY TRIAL” TIME ASSOCIATED WITH THE JOINDER OF A CO-DEFENDANT FOR TRIAL IS CHARGED TO THE DEFENDANT, EVEN WHERE THE DEFENDANT HAD NOT YET BEEN ARRAIGNED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Halligan, over a dissenting opinion by Judge Rivera, affirming the Appellate Division, determined (1) in order to effectively waive the right to counsel, a defendant need not be informed of his maximum sentencing exposure in years, and (2) the pre-arraignment delay associated with the joinder […]

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AFTER TWO MENTIONS OF THE POSSIBLE NEED FOR AN ATTORNEY WHICH DID NOT AMOUNT TO AN UNEQUIVOCAL REQUEST, THE DEFENDANT STATED “THAT’S WHAT I WANT A LAWYER FOR,” HE WAS “SCARED TO TALK,” AND HE “COULD STILL COOPERATE LATER;” THOSE STATEMENTS SHOULD HAVE BEEN UNDERSTOOD BY THE POLICE AS A REQUEST FOR COUNSEL (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, determined statements made by defendant after he invoked his right to counsel should have been suppressed: In the course of the investigators’ questioning of defendant, they transitioned away from asking defendant about his flight from the police and turned to the underlying domestic violence incident. When they began […]

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THE DELAY IN PRODUCING THE DEFENDANT FOR ARRAIGNMENT AFTER THE PEOPLE BECAME AWARE HE WAS IN CUSTODY WAS ATTRIBUTABLE TO THE PEOPLE (A “CONTRADICTORY HOLDING” BY THE FOURTH DEPARTMENT WAS NOTED); DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE TO DISMISS ON SPEEDY TRIAL GROUNDS; INDICTMENT DISMISSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and dismissing the indictment, determined the People were not timely ready for trial and defense counsel was ineffective for failing to move for dismissal on “speedy trial” grounds: … [T]he People became aware that defendant was in the custody of DOCCS at the May 13, 2019 appearance, and they […]

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THE DENIAL OF DEFENDANT’S REQUEST FOR AN INTOXICATION JURY INSTRUCTION WAS REVERSIBLE ERROR (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the denial of defendant’s request for the intoxication jury instruction was reversible error: … County Court improperly refused to instruct the jury as to the defense of intoxication. “An intoxication charge is warranted if, viewing the evidence in the light most favorable to the defendant, there is sufficient […]

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THE DENIAL OF DEFENDANT’S REQUEST FOR A CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION WAS REVERSIBLE ERROR (THIRD DEPT).

The Third Department, reversing the conviction and ordering a new trial, determined the denial of defendant’s request for a cross-racial identification jury instruction was reversible error: As held by the Court of Appeals in People v Boone (30 NY3d 521 [2017]), “when identification is an issue in a criminal case and the identifying witness and defendant appear […]

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