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Entries by Bruce Freeman

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THE CONVICTION UPON WHICH DEFENDANT’S SECOND-FELONY-OFFENDER STATUS WAS BASED WAS MORE THAN 10 YEARS BEFORE THE CURRENT OFFENSE AND THE PEOPLE DID NOT DEMONSTRATE THAT ANY PORTION OF THE 10-YEAR PERIOD WAS TOLLED BY INCARCERATION; SENTENCE VACATED AND MATTER REMITTED FOR A HEARING AND RESENTENCING (THIRD DEPT). ​

The Third Department, vacating defendant’s sentence as a second felony offender and remitting the matter for a hearing. determined the People did not submit evidence demonstrating when defendant was incarcerated such that the 10-year look-back period for the prior felony conviction could be calculated. The court noted that the issue need not be preserved for […]

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THE OFFICE OF RENEWABLE ENERGY SITING (ORES) CONDUCTED A PROPER REVIEW BEFORE ISSUING THE CHALLENGED REGULATIONS CONCERNING THE SITING OF MAJOR RENEWABLE ENERGY FACILITIES (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, determined that the Office of Renewable Energy Siting (ORES) had conducted a proper review before issuing regulations concerning the siting of major renewable energy facilities. The opinion is far too detailed to fairly summarize here: … [P]etitioners — who include numerous municipalities, municipal corporations and private […]

ALTHOUGH INJURY IN A TRAFFIC ACCIDENT ON THE WAY TO WORK IS USUALLY NOT COVERED BY WORKERS’ COMPENSATION, HERE THE “SPECIAL ERRAND” EXCEPTION APPLIED BECAUSE CLAIMANT, A POLICE OFFICER, WAS ENGAGED IN AN INVESTIGATION AND ON HIS WAY TO PICK UP A POLICE VEHICLE WHEN THE ACCIDENT OCCURRED (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the “special errand” exception applied and claimant, who was injured on his way to the police precinct after being called to investigate a grand larceny, was entitled to Workers’ Compensation benefits. Although injury on the way to work is usually not covered, here claimant had already […]

THE EVIDENCE SUPPORTED A CAUSAL CONNECTION BETWEEN THE STRESS CAUSED BY INTERACTION WITH CLAIMANT’S SUPERVISOR AND CLAIMANT’S HEART ATTACK (THIRD DEPT). ​

The Third Department, reversing the Workers’ Compensation Board, determined the evidence supported a causal relationship between the stress caused by interaction with claimant’s supervisor and the subsequent heart attack: We agree with claimant’s contention that the Board’s decision is not supported by substantial evidence as its finding that claimant did not sustain a physical injury […]

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THE INDICTMENT COUNT CHARGING AGGRAVATED FAMILY OFFENSE DID NOT SPECIFY WHICH OF THE LISTED OFFENSES WAS THE BASIS OF THE CHARGE, RENDERING THE COUNT JURISDICTIONALLY DEFECTIVE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, determined the count of the indictment charging aggravated family offense (Penal Law 240.75) was jurisdictionally defective because it did not specify which of the offenses listed in the statute was the basis of the charge: A defendant commits the crime of aggravated family offense […]

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THE DEFENDANT’S ACTIONS OBSERVED BY THE POLICE OFFICERS IN THIS STREET STOP DID NOT MEET THE “REASONABLE SUSPICION DEFENDANT HAD COMMITTED A CRIME OR WAS IN POSSESSION OF A WEAPON” STANDARD; THE FRISK WAS THEREFORE ILLEGAL AND THE SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED (CT APP).

The Court of Appeals, reversing the Appellate Division and dismissing the indictment, in a full-fledged opinion by Judge Wilson, and an extensive concurring opinion by Judge Rivera, determined the police did not have reasonable suspicion defendant had committed a crime or was in possession of a weapon at the time defendant was frisked. The drugs […]

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AN ANSWER OR A COMPLAINT VERIFIED BY AN ATTORNEY DOES NOT PROVE THE CONTENTS (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court, noted that an answer verified by an attorney (as opposed to the defendant) and a complaint verified by an attorney (as opposed to the plaintiff) do not prove the contents: … [A]n answer verified by an attorney is insufficient to demonstrate that the defendant has a potentially meritorious […]

ALTHOUGH FATHER’S GIRLFRIEND HAD ONLY SEEN THE ABUSED CHILD TWO OR THREE TIMES SHE WAS DEEMED A PERSON LEGALLY RESPONSIBLE FOR THE CHILD; THERE WAS A STRONG DISSENT (SECOND DEPT).

​The Second Department, over an extensive dissent, determined father’s girlfriend, Aisha, who only seen the abused child, Erica, two or three times, was correctly deemed a person legally responsible for Erica. The decision and the dissent are too fact-specific to fairly summarize here: “Determining whether a particular person has acted as the functional equivalent of […]

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