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Entries by Bruce Freeman

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THE STATUTE ALLOWING ONLY MEMBERS OF THE RELEVANT PARTY TO SUBMIT WRITE-IN BALLOTS IN A PRIMARY ELECTION IS CONSTITUTIONAL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the statute allowing only members of the relevant party to submit write-in ballots in a primary election is constitutional: The statute, which became effective on October 8, 2021, amended three sections of the Election Law to limit the universe of permissible write-in primary votes to enrolled members of the relevant […]

DEFENDANT IN THIS MANSLAUGHTER CASE WAS THE VICTIM OF DOMESTIC VIOLENCE AND SHOULD HAVE BEEN SENTENCED UNDER THE ALTERNATIVE SENTENCING SCHEME IN THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (FOURTH DEPT). ​

The Fourth Department determined defendant should have been sentenced in accordance with the Domestic Violence Survivors Justice Act (DVSJA) in this manslaughter prosecution and reduced her incarceration to four years: Penal Law § 60.12 (1) … provides an alternative sentencing scheme that the sentencing court may apply where it determines that “(a) at the time […]

THE ZONING BOARD OF APPEALS’ INTERPRETATION OF THE CODE RE: THE PARKING OF A CAMPER TRAILER ON THE PETITIONER’S PROPERTY WAS IRRATIONAL (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the zoning board of appeals’ (ZBA’s) interpretation of the zoning code was irrational. Petitioner was ordered to remedy the violation which was alleged to be his parking his camper trailer on his property within 250 feet of the property line. But the code provisions did not support […]

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THE FOURTH DEPARTMENT, NOTING A SPLIT OF AUTHORITY, DETERMINED THE PLAINTIFF DID NOT SET FORTH ALLEGATIONS WHICH DEMONSTRATED A SPECIAL RELATIONSHIP BETWEEN HER AND THE COUNTY; THEREFORE THE COUNTY COULD NOT BE HELD LIABLE FOR SEXUAL ABUSE ALLEGEDLY SUFFERED BY THE PLAINTIFF WHILE IN FOSTER CARE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and noting a split of authority, determined plaintiff in this Child Victims Act action alleging sexual abuse while in foster care did not demonstrate a “special relationship” with the county. The decision includes a concise explanation of the complex intertwined issues controlling governmental tort liability: In Mark G. v […]

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THE DEFENDANT TESTIFED THE VICTIM WAS ON TOP OF HIM REPEATEDLY STRIKING HIM IN THE HEAD WHEN HE PULLED OUT HIS FIREARM AND SHOT THE VICTIM; EVEN IF DEFENDANT’S VERSION WAS DEEMED UNLIKELY, THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s murder conviction and ordering a new trial, determined defendant was entitled to a jury instruction on the justification defense. Defendant testified he was on the ground with the victim on top of him, repeatedly striking him in the head, when he drew his weapon and shot the victim: “Even if […]

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ONE OF THE GRAND JURORS HAD A FELONY CONVICTION RENDERING THE GRAND JURY ILLEGALLY CONSTITUTED; THE INDICTMENT SHOULD HAVE BEEN DISMISSED; WHETHER THE DEFENDANT WAS PREJUDICED WAS IRRELEVANT (FOURTH DEPT). ​

The Fourth Department, reversing County Court, determined the grand jury was illegally constituted because one of the jurors had a felony conviction. The indictment should have been dismissed without considering whether defendant was prejudiced: CPL 210.20 (1) (c) authorizes a court to dismiss an indictment on the ground that “[t]he grand jury proceeding was defective, […]

HERE THE NEW STATUTE REQUIRING THE PEOPLE TO FILE AND SERVE A CERTIFICATE OF COMPLIANCE WITH DISCOVERY OBLIGATIONS WENT INTO EFFECT AFTER THE PEOPLE HAD ANNOUNCED READINESS FOR TRIAL; THE STATUTE RETURNED THE PEOPLE TO A STATE OF UNREADINESS; DEFENDANT’S MOTION TO DISMISS ON SPEEDY-TRIAL GROUNDS SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a dissent, determined defendant’s motion to dismiss the indictment on speedy trial grounds should have been granted. A new law went into effect during the course of the prosecution requiring the People to serve and file a certificate of compliance with discovery obligations (CPL 245.50(3)). Although the People […]

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THE TEXTS AND EMAILS WERE NOT SUBSCRIBED; THE BREACH OF CONTRACT ACTION BASED UPON THE EMAILS AND TEXTS WAS BARRED BY THE STATUTE OF FRAUDS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the emails and texts did not meet the criteria for a written contract (here a purported agreement to purchase property). The breach of contract cause of action was therefore barred by the statute of frauds: Initially, “[a]n e-mail sent by a party, under which the sending party’s name […]

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IN THIS CHILD VICTIMS ACT ACTION, THE JUDGE CORRECTLY STRUCK INFLAMMATORY LANGUAGE FROM THE COMPLAINT BUT SHOULD NOT HAVE SEALED THE COMPLAINT WITHOUT MAKING WRITTEN FINDINGS (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the judge was correct in striking inflammatory language from this Child Victims Act complaint but should not have sealed the complaint: Pursuant to CPLR 3024 (b), “[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading.” “[I]t is generally held that […]

WALMART DID NOT OWE A DUTY OF CARE TO PLAINTIFF, AN OFF-DUTY POLICE OFFICER INJURED BY ANOTHER POLICE OFFICER AFTER RESPONDING TO A THEFT AT A WALMART STORE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant Walmart did not owe a duty of care to plaintiff, an off-duty police officer who was injured by another police officer after responding to a call about a theft from Walmart: Walmart contends that it owed no duty to plaintiff and that the court thus erred in […]

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