You are here: / Bruce Freeman

Entries by Bruce Freeman

, ,

DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A PERSISTENT VIOLENT FELONY OFFENDER WITHOUT A HEARING DEMONSTRATING THE CRITERIA HAVE BEEN MET (FOURTH DEPT). ​

The Fourth Department, vacating defendant’s sentence, determined the judge should have granted defendant’s request for a hearing before sentencing defendant as a persistent violent felony offender. There had been no determination whether the criteria for sentencing as a persistent violent felony offender (at least two sentences for violent felonies within the last 10 years) had […]

,

THE MAJORITY CONCLUDED THE GUN SHOTS AND THE 911 CALL STATING FOUR BLACK KIDS, ONE WITH A GUN, WERE WALKING AROUND JUSTIFIED APPROACHING DEFENDANT ON THE STREET AND JUSTIFIED PURSUING HIM AND SEARCHING HIM WHEN HE RAN; TWO DISSENTERS NOTED THAT THE DEFENDANT DID NOT MATCH THE 911 CALLER’S DESCRIPTION AND ARGUED HIS FLIGHT ALONE DID NOT JUSTIFY PURSUIT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined the police lawfully approached the defendant on the street, lawfully pursued him when he ran, and lawfully searched him, recovering a handgun. The police had heard gun shots and were aware of a 911 call indicating four Black kids were walking around and one had a gun. […]

,

ALTHOUGH PLAINTIFF CROSSED INTO DEFENDANT’S ONCOMING LANE TO PASS A MAIL TRUCK, DEFENDANT WAS NOT ENTITLED TO SUMMARY JUDGMENT; THERE WAS A QUESTION OF FACT WHETHER DEFENDANT REACTED REASONABLY TO AN EMERGENCY; TWO OTHER CARS HAD ENTERED DEFENDANT’S LANE TO GO AROUND THE TRUCK JUST BEFORE THE COLLISION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant’s motion to dismiss the complaint in this traffic accident case should not have been granted. Plaintiff pulled into defendant’s lane of traffic to go around a mail truck. Just prior to the collision with plaintiff two other cars had passed the mail truck by pulling into defendant’s […]

AFTER REMOVING THE FLASHING AND CAULKING AROUND A SECOND-STORY WINDOW, PLAINTIFF WAS GIVEN PERMISSION TO LOWER THE LIFT TO THE GROUND TO GO THE BATHROOM; THE UNSECURED WINDOW FELL ON HIS HEAD; PLAINTIFF WAS NOT THE SOLE PROXIMATE CAUSE OF THE ACCIDENT AND WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240(1) action. After the flashing and caulking around the second-story window were removed, plaintiff was given permission to go to the bathroom and he lowered the scissors lift he was working from to the ground. The unsecured window […]

,

MOTHER’S DECLINING HEALTH WAS A FACTOR IN THE COURT’S GRANTING MOTHER’S PETITION TO RECOCATE WITH THE CHILDREN NEAR HER MOTHER IN TENNESSEE; THE DISSENT ARGUED THE REFEREE DID NOT ADEQUATELY CONSIDER THE EFFECT ON VISITATION WITH FATHER AND MOTHER DID NOT MEET HER BURDEN TO SHOW THE CHILDREN WOULD BE BETTER CARED FOR OR BETTER EDUCATED IN TENNESSEE (FOURTH DEPT).

The Fourth Department, over a dissent, determined mother’s petition for sole custody and permission to relocate to Tennessee was properly granted: … [M]other testified at the hearing that she has been the primary caregiver of the children and that her health has been steadily declining. She further established that the maternal grandmother, who moved to […]

ATTEMPTED ASSAULT SECOND DEGREE IS A LESSER INCLUSORY CONCURRENT COUNT OF ATTEMPTED ASSAULT FIRST DEGREE; THE TWO COUNTS MUST BE SUBMITTED TO THE JURY IN THE ALTERNATIVE (FOURTH DEPT).

The Fourth Department reversed the attempted assault second conviction as a lesser inclusory concurrent count of attempted assault in the first degree. Defendant had been convicted of both: The two counts should have been submitted to the jury in the alternative. People v Roach, 2023 NY Slip Op 05872, Fourth Dept 11-17-23  

, ,

PLAINTIFF’S ATTORNEY HAD REPRESENTED THE DEFENDANT IN THIS CASE IN A MATTER INVOLVING SUBSTANTIALLY SIMILAR ALLEGATIONS OF MEDICAL MALPRACTICE; THE MOTION TO DISQUALIFY PLAINTIFF’S ATTORNEY AND THE ATTORNEY’S SMALL LAW FIRM SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s attorney, Laraby, and Laraby’s law firm, must be disqualified in this medical malpractice action. Laraby had represented the defendant in this case in a matter involving substantially similar allegations of malpractice: The plaintiff in the prior representation, whose baby had suffered from essentially the same injuries as […]

IN A MANDAMUS PROCEEDING WHICH IS TRIGGERED BY A DEMAND BY PETITIONER, AN UNREASONABLE DELAY IN MAKING THE DEMAND WILL RENDER THE PROCEEDING TIME-BARRED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined petitioner’s Article 78 proceeding was time-barred because petitioner unreasonably delayed making the demand which triggered the four-month statute of limitations (laches): “[W]here, as here, the proceeding is in the nature of mandamus to compel, it ‘must be commenced within four months after refusal by respondent, upon demand of […]

,

THE OFFICER WHO CONVINCED DEFENDANT TO CONSENT TO THE SEARCH TOLD THE DEFENDANT HE WOULD BE HAPPY TO APPLY FOR A WARRANT BUT DEFENDANT WOULD BE DETAINED UNTIL THE WARRANT WAS PROCURED; BECAUSE THE POLICE DID NOT HAVE PROBABLE CAUSE FOR A SEARCH WARRANT, THE OFFICER’S STATEMENT WAS MISLEADING; DEFENDANT’S CONSENT TO SEARCH WAS NOT VOLUNTARILY GIVEN (FOURTH DEPT).

The Fourth Department, suppressing the drugs found in defendant’s car and defendant’s related statements, determined the consent to search was not voluntarily given. The officer told the defendant he would be happy to apply for a warrant but defendant would be detained until the warrant was obtained. However, the officer told the defendant, if he […]

,

THE PETITIONERS (THREE NYS LEGISLATORS AND AN ADVOCACY GROUP) DID NOT HAVE STANDING TO CHALLENGE THE DEPARTMENT OF HEALTH REGULATIONS ALLOWING ISOLATION AND QUARANTINE DURING THE COVID-19 PANDEMIC (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the three New York State legislators (the legislator petitioners) and the advocacy group (the organizational petitioner) challenging the Department of Health regulations allowing isolation and quarantine during the COVID pandemic did not have standing to bring the petition. Legislators have standing where there has been a usurpation of […]

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy