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Entries by Bruce Freeman

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THE SEARCH OF A CAR AFTER DEFENDANT HAS BEEN REMOVED FROM THE CAR CANNOT BE CONSIDERED A SEARCH INCIDENT TO ARREST; SUPPRESSION GRANTED AND INDICTMENT DISMISSED (FIRST DEPT).

The First Department, reversing defendant’s conviction and dismissing the indictment, determined the search of defendant’s car was not a valid search incident to arrest because defendant and the driver had already been removed from the car. The People elected not to rely on the appeal waiver because of the erroneous suppression ruling: The court improperly […]

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THE CONSOLIDATED TRIAL OF TWO SEPARATE CRIMINAL TRANSACTIONS, COUPLED WITH THE ABSENCE OF LIMITING JURY INSTRUCTIONS, CONSTITUTED REVERSIBLE ERROR (FIRST DEPT). ​

The First Department, in a full-fledged comprehensive opinion by Justice Rodriguez, over a two-justice comprehensive concurring opinion, determined that the consolidated trial of two separate criminal transactions, without appropriate limiting jury instructions, was reversible error: The first indictment charged defendant with, among other counts, attempted murder. In relation to the first indictment, no gun was […]

THE SIDEWALK ON WHICH PLAINTIFF WAS RIDING HIS MOTORIZED BICYCLE WHEN HE FELL WAS NOT DESIGNED OR SUITABLE FOR RECREATIONAL USE; THEREFORE THE PROPERTY OWNER, SYRACUSE UNIVERSITY, COULD NOT RELY ON THE RECREATIONAL-USE STATUTE (GENERAL OBLIGATIONS LAW 9-103) TO ESCAPE LIABILITY (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the recreational use statute (General Obligations Law 9-103(1)(a)) did not apply to the sidewalk on which plaintiff was riding his motorized bicycle when he fell. Therefore defendant was not entitled escape liability based upon the statute. The sidewalk was along a busy road on the Syracuse University campus […]

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IN A MED MAL ACTION PLAINTIFF’S EXPERT NEED NOT HAVE PRACTICED IN THE SAME SPECIALTY AS DEFENDANT DOCTOR TO BE QUALIFIED TO OFFER EXPERT OPINION EVIDENCE (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined plaintiff’s expert laid an adequate foundation for their qualifications in orthopedic medicine. The court noted that plaintiff’s expert need not have practiced in the same specialty as the defendant: “[A] plaintiff’s expert need not have practiced in the same specialty as the defendant[]” … , and “any alleged […]

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THE EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT DID NOT JUSTIFY THE OFFICER’S ENTRY OF THE RESIDENCE AND SEIZURE OF A SWITCHBLADE; SWITCHBLADE AND STATEMENTS RELATING TO THE SWITCHBLADE SUPPRESSED; IN ADDITION, AN INCLUSORY CONCURRENT COUNT WAS DISMISSED (FOURTH DEPT).

The Fourth Department determined (1) the search of defendant’s premises and the seizure of switchblade was not justified by the emergency exception to the warrant requirement and (2) the criminal possession of a weapon conviction must be dismissed as an inclusory concurrent count of criminal possession of a weapon third: The court reasoned that the […]

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THE ACTION FOR DAMAGES FOR MEDICAL SERVICES WAS NOT APPROPRIATE FOR A CLERK’S JUDGMENT FOR A SUM CERTAIN; DEFENDANT RAISED A QUESTION OF FACT WHETHER HE WAS PROPERLY SERVED WITH THE SUMMONS WITH NOTICE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined (1) the action for damages for medical services was not appropriate for a clerk’s judgment for a sum certain pursuant to CPLR 3215(a) and (2) defendant raised a question of fact about whether he was served with the summons with notice pursuant to CPLR 308(4): … [T]he Clerk […]

THE COVID STATUTE OF LIMITATIONS TOLLS EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, explained how the COVID toll of the statute of limitations works: “A toll does not extend the statute of limitations indefinitely but merely suspends the running of the applicable statute of limitations for a finite and, in this instance, readily identifiable time period” … . “[T]he period of […]

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THE STREET REPAIR WORK DONE BY THE CITY IN THE AREA WHERE PLAINTIFF SLIPPED AND FELL WAS DONE MORE THAN A YEAR BEFORE AND DETERIORATED GRADUALLY OVER TIME; IN ORDER FOR THE CITY TO BE LIABLE FOR CREATING THE DANGEROUS CONDITION THE DEFECT MUST HAVE BEEN THE IMMEDIATE RESULT OF THE WORK (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Supreme Court, dismissed the action against the city in this slip and fall case. There was a question whether the city repair to the street deteriorated over a period of a year or more. But in order to be liable for creating a dangerous condition, the defect must be the […]

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THE MAJORITY AFFIRMED THE CONVICTION BUT A TWO-JUSTICE DISSENT ARGUED DEFENSE COUNSEL WAS INEFFECTIVE FOR ALLOWING PREJUDICIAL EVIDENCE TO COME IN WITHOUT A STRATEGIC JUSTIFICATION (FOURTH DEPT).

The Fourth Department majority affirmed defendant’s conviction, but a two-justice dissent argument defense counsel allowed prejudicial evidence to come in without any strategic justification: From the dissent: Meaningful representation is “reasonable competence, not perfect representation” … . “However it is elementary that the right to effective representation includes the right to assistance by an attorney […]

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