Bruce Freeman – Page 194 – New York Appellate Digest

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Entries by Bruce Freeman

Education-School Law, Evidence, Negligence

PLAINTIFF STOOD UP FROM A DESK AND TRIPPED OVER THE BOTTOM DRAWER WHICH HAD PARTIALLY OPENED; THERE WERE QUESTIONS OF FACT WHETHER THE CONDITION WAS OPEN AND OBVIOUS AND WHETHER DEFENDANT HAD ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONDITION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the negligence action alleging plaintiff stood up from a desk and tripped on the bottom desk drawer should not have been dismissed. The defendant did not demonstrate the condition was open and obvious and did not demonstrate it did not have actual or constructive notice of the condition: […]

November 22, 2023

Criminal Law, Evidence

THE MAJORITY AFFIRMED DEFENDANT’S CONVICTIONS FOR TWO SEPARATE MURDERS WHICH WERE TRIED TOGETHER; A TWO-JUSTICE DISSENT ARGUED THE TWO PROSECUTIONS SHOULD HAVE BEEN SEVERED BECAUSE OF THE WEAKNESS OF THE EVIDENCE AND THE PROBABILITY THE JURY WOULD NOT CONSIDER THE EVIDENCE OF EACH MURDER SEPARATELY (THIRD DEPT).

The Third Department affirmed defendant’s convictions over a two-justice dissent arguing that the two charged murders should have been tried separately: Defendant argued that the People had joined “two underwhelming cases” in hopes that the jury would be more likely to convict a “common suspect.” In opposing the motion, the People argued that the counts […]

November 22, 2023

Criminal Law

IF THE PEOPLE WERE AWARE OF DEFENDANT’S LOCATION OUT-OF-STATE AND DID NOT EXERCISE “DUE DILIGENCE” IN SECURING HER RETURN TO NEW YORK THE SPEEDY TRIAL CLOCK WOULD NOT STOP RUNNING BASED SOLELY ON HER ABSENCE; HEARING REQUIRED (THIRD DEPT).

The Third Department, reversing County Court, determined defendant had raised questions of fact whether the People were aware of her location in Virginia between her indictment in 2013 and her return to New York in 2018. County Court, therefore, should have held a hearing on her “speedy trial” motion to dismiss. If the People were […]

November 22, 2023

Criminal Law, Evidence

ALTHOUGH DEFENDANT WAS IN A PRISON AS A VISITOR WHEN THERE WAS A CANINE ALERT TO DRUGS ON HER PERSON, THE CIRCUMSTANCES WERE SUCH THAT ANY QUESTIONING SHOULD HAVE BEEN PRECEDED BY THE MIRANDA WARNINGS; A REASONABLE PERSON WOULD NOT HAVE FELT FREE TO LEAVE; BECAUSE THEY WERE CLOSE IN TIME, BOTH HER ORAL STATEMENT AND HER POST-MIRANDA WRITTEN STATEMENT SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, reversing County Court, determined the defendant, who, as a visitor in a prison, was taken aside by an investigator after a canine alert to the presence of drugs on her person, was subjected to “custodial interrogation” requiring suppression of her admission to having drugs and her subsequent written statement: … [W]hen the canine […]

November 22, 2023

Attorneys, Criminal Law, Evidence

THE CONCLUSIONS OF THE PEOPLE’S ACCIDENT-RECONSTRUCTION EXPERT (WHO WAS NOT CALLED TO TESTIFY AT TRIAL) WOULD HAVE HAD AN IMPACT ON THE CONCLUSIONS DRAWN BY THE DEFENSE ACCIDENT-RECONSTRUCTION EXPERT; WITHHOLDING THE EVIDENCE FROM THE DEFENSE WAS A BRADY VIOLATION REQUIRING REVERSAL AND A NEW TRIAL (THIRD DEPT).

The Third Department, reversing defendant’s vehicular homicide and manslaughter convictions and ordering a new trial, determined expert opinion evidence constituted Brady material which was wrongfully withheld from the defense. The People’s accident-reconstruction expert in question, who did not testify at the trial, was named Pinzer. The defense accident-reconstruction expert, named Silver, testified in the CPL 440 hearing […]

November 22, 2023

Appeals, Criminal Law, Evidence

A POOR-QUALITY VIDEO SHOWED THE SHOOTING AND THE SHOOTER GETTING INTO THE DRIVER’S SEAT OF THE CAR WHICH WAS STOPPED AFTER A CHASE; THERE WAS NO EVIDENCE ANY OF THE OCCUPANTS GOT OUT OF THE DRIVER SIDE OF THE CAR; TWO OF THE OCCUPANTS HAD CLOTHES SIMILAR TO THOSE WORN BY THE SHOOTER; DEFENDANT’S CONVICTION WAS SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE; BUT DEFENDANT’S CONVICTION WAS REVERSED AS AGAINST THE WEIGHT OF THE EVIDENCE (THIRD DEPT),

The Third Department, reversing defendant’s manslaughter conviction, determined the verdict was not supported by the weight of the evidence. The shooting was captured on a video and showed the shooter getting into the driver’s seat of a vehicle which drove off. After a chase the vehicle was stopped and three persons got out of the car. […]

November 22, 2023

Criminal Law, Judges

COUNTY COURT DID NOT CORRECTLY APPLY THE CRITERIA OF THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA) WHEN CONSIDERING DEFENDANT’S MOTION FOR RESENTENCING; THE THIRD DEPARTMENT DETERMINED DEFENDANT WAS ENTITLED TO A MORE LENIENT SENTENCE UNDER THE ACT AND RESENTENCED HER TO TIME SERVED (THIRD DEPT).

The Third Department, reversing County Court and resentencing defendant to time served, determined County Court did not comply with the criteria of the Domestic Violence Survivors Justice Act (DVSJA) when considering defendant’s motion for resentencing under the act. Defendant had been convicted of killing her paramour and was sentenced to ten years in prison: The […]

November 22, 2023

Family Law, Judges

THE JUDGE SHOULD NOT HAVE DELEGATED THE COURT’S AUTHORITY TO SCHEDULE VISITATION (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined the judge should not have delegated the court’s authority to schedule visitation: … Family Court improperly granted the grandfather and the father of the older child sole authority to determine the dates for at least four consecutive days of visitation in the months of July and August. […]

November 22, 2023

Civil Procedure, Court of Claims, Negligence

THE CLAIM OF SEXUAL ABUSE UNDER THE CHILD VICTIMS ACT MET THE PLEADING CRITERIA OF THE COURT OF CLAIMS ACT; THE FOUR-YEAR TIME FRAME WAS SUFFICIENTLY PRECISE; THE FACTS ALLEGED SUFFICIENTLY STATED THE NATURE OF THE DEFENDANT’S NEGLIGENCE (THIRD DEPT).

The Third Department, reversing the Court of Claims, in a full-fledged opinion by Justice Mackey, determined claimant sufficiently stated a sexual-abuse claim under the Child Victims Act: The reality is that “in matters of sexual abuse involving minors, as recounted by survivors years after the fact, dates and times are sometimes approximate and incapable of […]

November 22, 2023

Civil Procedure, Evidence, Foreclosure, Uniform Commercial Code

PLAINTIFF DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff in this foreclosure action did not demonstrate she had standing to bring it: “A plaintiff has standing to maintain a mortgage foreclosure action where it is the holder or assignee of the underlying note at the time the action is commenced” … . The plaintiff can […]

November 22, 2023

About Bruce Freeman

Entries by Bruce Freeman

PLAINTIFF STOOD UP FROM A DESK AND TRIPPED OVER THE BOTTOM DRAWER WHICH HAD PARTIALLY OPENED; THERE WERE QUESTIONS OF FACT WHETHER THE CONDITION WAS OPEN AND OBVIOUS AND WHETHER DEFENDANT HAD ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONDITION (SECOND DEPT).

IF THE PEOPLE WERE AWARE OF DEFENDANT’S LOCATION OUT-OF-STATE AND DID NOT EXERCISE “DUE DILIGENCE” IN SECURING HER RETURN TO NEW YORK THE SPEEDY TRIAL CLOCK WOULD NOT STOP RUNNING BASED SOLELY ON HER ABSENCE; HEARING REQUIRED (THIRD DEPT).

THE JUDGE SHOULD NOT HAVE DELEGATED THE COURT’S AUTHORITY TO SCHEDULE VISITATION (THIRD DEPT).

THE CLAIM OF SEXUAL ABUSE UNDER THE CHILD VICTIMS ACT MET THE PLEADING CRITERIA OF THE COURT OF CLAIMS ACT; THE FOUR-YEAR TIME FRAME WAS SUFFICIENTLY PRECISE; THE FACTS ALLEGED SUFFICIENTLY STATED THE NATURE OF THE DEFENDANT’S NEGLIGENCE (THIRD DEPT).

PLAINTIFF DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

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