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Entries by Bruce Freeman

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DEFENDANT’S WAIVER OF HIS RIGHT TO COUNSEL WAS NOT KNOWING, INTELLIGENT AND VOLUNTARY; NEW HEARINGS AND TRIAL ORDERED; CRITERIA EXPLAINED IN SOME DETAIL (FIRST DEPT).

The First Department, ordering new hearings and a new trial, determined defendant’s waiver of his right to counsel was not knowing, voluntary and intelligent: Defendant’s criminal history, which included drug possession and sale convictions dating back to 1992, and his in-court remarks regarding his history of substance abuse issues and present drug use constituted a […]

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IT WAS AN ABUSE OF DISCRETION TO ORDER AN EVIDENTIARY HEARING IN THIS TOXIC TORT CASE; NO FRYE HEARING WAS NECESSARY BECAUSE THE EXPERTS DID NOT USE NOVEL OR EXPERIMENTAL METHODS; NO PARKER HEARING WAS NECESSARY BECAUSE GENERAL AND SPECIFIC CAUSATION WERE ADEQUATELY ADDRESSED IN THE EXPERTS’ SUBMISSIONS AND GENERALLY ACCEPTED METHODS WERE USED (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Ceresa, determined there was no need for a Frye hearing in this toxic tort case because none of the three experts used methods that were novel or experimental. In addition, there was no need for a Parker hearing because the expert’s used generally […]

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PURSUANT TO THE “HUMANE ALTERNATIVES TO LONG-TERM CONFINEMENT ACT (HALT ACT),” AN INMATE WHO IS FACING SEGREGATED CONFINEMENT HAS A RIGHT TO THE PRESENCE OF COUNSEL AT THE DISPOSITIONAL PHASE OF THE DISCIPLINARY HEARING (THIRD DEPT). ​

The Third Department, in a full-fledged opinion by Justice Powers, determined that the incarcerated petitioner had a right to have his attorney present during the dispositional phase of the disciplinary hearing after he was found guilty of possession of a weapon. The Hearing Officer had determined counsel’s presence was “no longer necessary” in violation of […]

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FAMILY COURT DID NOT PROVIDE FATHER WITH EVERY REASONABLE INFERENCE AND RESOLVE ALL CREDIBILITY ISSUES IN HIS FAVOR WHEN CONSIDERING MOTHER’S MOTION TO DISMISS THE CUSTODY MODIFICATION PETITION AFTER FATHER’S TESTIMONY; ALTHOUGH FATHER DESCRIBED WHAT THE CHILDREN TOLD HIM, SUCH HEARSAY CAN BE ADMISSIBLE IN ABUSE AND NEGLECT PROCEEDINGS; IN ADDITION, THE LINCOLN HEARING, WHICH WAS CANCELLED BY THE JUDGE, COULD HAVE SERVED TO CORROBORATE FATHER’S TESTIMONY; MATTER REMITTED (THIRD DEPT).

The Third Department, reversing Family Court, determined mother’s motion to dismiss at the close of father’s testimony in this modification of custody proceeding should not have been granted. The judge granted the motion to dismiss because there was no corroboration of father’s testimony which described what the children told him. However the children’s hearsay is […]

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THE MODIFICATION OF CUSTODY PETITION WAS SUFFICIENT TO WITHSTAND THE MOTION TO DISMISS, CRITERIA EXPLAINED (THIRD DEPT).

The Third Department, reversing Family Court, determined the maternal grandmother, who has custody of the children, sufficiently alleged a change of circumstances which may warrant an modification of custody such that the children could choose to spend time with the maternal grandfather and the maternal grandmother and grandmother could live together. The petition for modification […]

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DEFENDANT, WHO WAS CHARGED WITH FIRST DEGREE ROBBERY, PRESENTED NO EVIDENCE THE BB GUN DISPLAYED DURING THE ROBBERY WAS NOT CAPABLE OF CAUSING DEATH OR SERIOUS INJURY; THEREFORE THE TRIAL JUDGE PROPERLY REFUSED TO INSTRUCT THE JURY ON THE “DISPLAYED-WEAPON-COULD-NOT-CAUSE-DEATH-OR-SERIOUS-INJURY” AFFIRMATIVE DEFENSE; A THREE-JUDGE DISSENT ARGUED THAT, BECAUSE IT WAS UNCONTROVERTED THAT DEFENDANT DISPLAYED A BB GUN, SECOND DEGREE ROBBERY WAS THE ONLY AVAILABLE CHARGE (CT APP).

The Court of Appeals, affirming the Appellate Division on different grounds, in a full-fledged opinion by Judge Troutman, over a three-judge dissent, determined the trial judge properly refused to instruct the jury on the affirmative defense that the weapon displayed by defendant during the robbery was not capable of causing death or serious injury. Defendant […]

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UNDER THE LIEN LAW, THE GENERAL CONTRACTOR IN A FAILED SOLAR ENERGY PROJECT, AS TRUSTEE OF THE SETTLEMENT FUNDS, WAS PROPERLY PRECLUDED FROM USING THE FUNDS TO PAY ITSELF FIRST; THE SUBCONTRACTORS MUST BE PAID FIRST; THERE WAS A TWO JUSTICE DISSENT (THIRD DEPT).

The Third Department, affirming Supreme Court, over a two-justice dissent, in a matter of first impression, determined the subcontractors’ motion to enjoin the general contractor from using settlement funds to pay itself for expenditures in a failed solar-energy project was properly granted. The Lien Law created a trust for the settlement funds and required the […]

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ALTHOUGH PLAINTIFF MAY NOT HAVE INTENDED THE RELEASE TO APPLY TO A PENDING FALSE ARREST ACTION, THE PENDING ACTION WAS NOT LISTED IN THE RELEASE AS AN EXCLUSION AND IS THEREFORE PRECLUDED (CT APP).

The Court of Appeals determined that, even if plaintiff did not intend to release the city from the second false arrest action when he signed a release for the first false arrest action, the release must be enforced according to its plain language. The release had a section where any actions not intended to be […]

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THE MINISTERIAL EXCEPTION DOES NOT PRECLUDE THIS HOSTILE-WORK-ENVIRONMENT ACTION BY EMPLOYEES OF A PRIVATE CATHOLIC HIGH SCHOOL; THE MINISTERIAL EXCEPTION PRECLUDES ACTIONS AGAINST RELIGIOUS INSTITUTIONS WHICH INTERFERE WITH RELIGIOUS DOCTRINE; THE ALLEGATIONS OF HARASSMENT BY SCHOOL OFFICIALS DO NOT INVOLVE RELIGIOUS DOCTRINE (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined the-hostile work-environment causes of action by employees of a private Catholic high school should not have been dismissed pursuant to the “ministerial exception” which, in certain circumstances, will preclude employment discrimination actions against a religious institution: Plaintiffs … were all employed by … a private Catholic school . […]

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A CONTRACT (A MEMORANDUM OF UNDERSTANDING OR “MOU”) WHICH PURPORTED TO BIND CURRENT AND FUTURE TOWN OFFICIALS TO A REZONING REQUEST FOR A REAL ESTATE DEVELOPMENT PROJECT VIOLATED THE “TERM LIMITS DOCTRINE” AND WAS THEREFORE UNENFORCEABLE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a three-judge concurrence, determined that a memorandum of understanding (MOU) which purported to bind current and future municipal officials to plaintiff’s rezoning request for a real estate development project violated the term limits doctrine and was unenforceable:​ “The term limits rule prohibits one […]

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