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Entries by Bruce Freeman

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A JUROR WAS CONVINCED DEFENDANT HAD FOLLOWED HER HOME AND SO INFORMED THE JURY DURING DELIBERATIONS; THE JUROR WAS “GROSSLY UNQUALIFIED” AND DEFENDANT’S MOTION FOR A MISTRIAL SHOULD HAVE BEEN GRANTED (CT APP).

The Court of Appeals, reversing defendant’s conviction and ordering a new trial, in a full-fledged opinion by Judge Wilson, determined a juror should have been dismissed as “grossly unqualified,” and a mistrial should have been granted: Upon a jury verdict, the trial court convicted Kenneth Fisher of three counts of third-degree criminal possession of a […]

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IT WAS NOT ERROR TO REMOVE THE DISRUPTIVE DEFENDANT FROM THE COURTROOM WITHOUT WARNING JUST PRIOR THE THE ANNOUNCEMENT OF THE VERDICT AND THE POLLING OF THE JURY; APPELLATE COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO RAISE THE “REMOVAL” ISSUE ON DIRECT APPEAL (CT APP).

The Court of appeals, in a full-fledged opinion by Judge Rivera, over an extensive dissenting opinion, reversing the grant of a writ of coram nobis, determined: (1) defendant was properly removed from court without warning before the verdict and the poll of the jurors; and (2) appellate counsel was not ineffective for failing to raise […]

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IN THIS MENTAL HYGIENE LAW ARTICLE 10 PROCEEDING TO DETERMINE WHETHER RESPONDENT SEX OFFENDER SUFFERED FROM A MENTAL ABNORMALITY WARRANTING CIVIL MANAGEMENT, THE JUDGE CONFLATED TWO DIFFERENT LEGAL STANDARDS, ERRONEOUSLY FOUND THAT A MENTAL ABNORMALITY CANNOT BE PROVEN BY A CONSTELLATION OF CONDITIONS, DISEASES AND DISORDERS, AND IMPROPERLY RELIED ON OUTSIDE RESEARCH (FIRST DEPT). ​

The First Department, in a full-fledged opinion by Justice Singh, over an extensive dissenting opinion, reversing Supreme Court and ordering a new trial, determined several errors by the judge in this Mental Hygiene Law article 10 proceeding tainted the judge’s finding that the state had not proven respondent sex offender suffered from a mental abnormality […]

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THE TRIAL JUDGE SHOULD HAVE HELD AN INDEPENDENT-SOURCE HEARING BEFORE ALLOWING THE UNDERCOVER OFFICER TO IDENTIFY THE DEFENDANT AT TRIAL; HEARING AND NEW TRIAL ORDERED (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Troutman, reversing the conviction and ordering an independent-source hearing and a new trial, found the record insufficient to determine whether the undercover officer had an independent source for his in-court identification of the defendant. Supreme Court, rather than holding an independent-source hearing, relied on the […]

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APPELLANTS IMPROPERLY DEDUCTED ROYALTY PAYMENTS RECEIVED FROM FOREIGN AFFILIATE CORPORATIONS WHICH WERE NOT SUBJECT TO NEW YORK FRANCHISE TAXES (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a two-judge concurrence, determined the appellant corporations improperly deducted royalty payments received from foreign affiliates not subject to New York’s franchise taxes: Under a taxation scheme in effect from 2003 through 2013, New York allowed corporations that paid franchise taxes in New York […]

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FOR-PROFIT NURSING HOMES’ CHALLENGE TO ADJUSTED MEDICAID REIMBURSEMENT RATES REJECTED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, reversing (modifying) the Appellate Division, rejected petitioner for-profit nursing homes’ challenges to the adjusted Medicaid reimbursement rates which were to be implemented as of April 1, 2020: … [W]e reject petitioners’ challenges to adjusted Medicaid reimbursement rates issued to comply with amended Public Health […]

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BEFORE ADMITTING NON-EYEWITNESS TESTIMONY TO IDENTIFY DEFENDANT IN A VIDEO, THE BASIS SHOULD BE DETERMINED OUTSIDE THE PRESENCE OF THE JURY, THE PARTY OFFERING THE WITNESS MUST DEMONSTRATE THE RELIABILITY OF THE WITNESS, AND THE NEED FOR THE TESTIMONY MUST BE DEMONSTRATED; IN ADDITION, A THOROUGH RECORD MUST BE CREATED AND THE JURY SHOULD BE INSTRUCTED THEY ARE FREE TO REJECT THE NON-EYEWITNESS IDENTIFICATION (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Halligan, reversing the Appellate Division, over a concurrence, determined the “non-eyewitness” who purported to identify the defendant in a video was not shown to be sufficiently familiar with the defendant and there was no showing that the jury faced an obstacle to making the identification: […]

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HERE THE FACILITY REVIEW OFFICER VIEWED THE VIDEO EVIDENCE AND EXPRESSED THE CONCLUSION PETITIONER HAD VIOLATED PRISON RULES BEFORE THE DISCIPLINARY HEARING; THAT SAME OFFICER DECIDED PETITIONER’S ADMINISTRATIVE APPEAL; THAT SCENARIO VIOLATED DUE PROCESS; THE MISBEHAVIOR DETERMINATION WAS ANNULLED (THIRD DEPT).

The Third Department, annulling the determination petitioner had violated prison rules, determined the fact that the facility review officer reviewed petitioner’s misbehavior report and decided the administrative appeal violated due process: Petitioner contends … he was denied due process because the facility review officer that reviewed his misbehavior report … also decided petitioner’s administrative appeal […]

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RE: IN VITRO FERTILIZATION: RETRIEVING AND FERTILIZING THE EGGS ARE SUBJECT TO THE MEDICAL-MALPRACTICE STATUTE OF LIMITATIONS; STORING AND MAINTAINING THE FROZEN EGGS ARE SUBJECT TO THE ORDINARY NEGLIGENCE STATUTE OF LIMITATIONS; THE MEDICAL MALPRACTICE ACTIONS ARE UNTIMELY; THE ORDINARY NEGLIGENCE ACTIONS ARE TIMELY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Shulman, determined plaintiffs’ causes of action alleging defendants did not properly freeze, store and maintain embryos for future implantation sounded in negligence, not medical malpractice, and were therefore timely: The underlying parts of the IVF [in vitro fertilization] process implicate both medical […]

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A BREACH OF CONTRACT ACTION SHOULD NOT BE CONSOLIDATED WITH A TORT ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined the breach of contract action and the fraudulent conveyance action should not have been consolidated: In 2016, plaintiff commenced a breach of contract action against defendant eCommission Solutions, LLC (eCommission). In 2022, plaintiff commenced a fraudulent conveyance action against eCommission and its president, Paul Hoffman, and his wife, […]

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