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THE COMPLAINT STATED A CAUSE OF ACTION FOR BREACH OF IMPLIED CONTRACT AND DEFENDANT’S MOTION TO DISMISS BASED ON DOCUMENTARY EVIDENCE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined the complaint stated a cause of action for breach of implied contract and the defendant’s motion to dismiss the breach of implied cause of action based on documentary evidence should not have been granted: “Whether an implied-in-fact contract was formed and, if so, the extent of its terms, […]

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THE TOWN BOARD’S FAILURE TO PROVIDE ITS REASONS FOR ITS RULING IN THIS VARIANCE PROCEEDING AND THE BOARD’S FAILURE TO MAKE ADEQUATE FINDINGS OF FACT REQUIRED THE APPELLATE COURT TO REMIT THE MATTER FOR THE SECOND TIME UNDER THREAT OF SANCTIONS (FOURTH DEPT).

The Fourth Department, sending the matter back to the Town Board for the second time in this variance proceeding, determined the board’s failure make adequate findings of fact and explain the reasons for its decision precluded appellate review: Generally, “[f]indings of fact which show the actual grounds of a decision are necessary for an intelligent […]

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THE PROSECUTOR DID NOT INSTRUCT THE GRAND JURY ON ALL OF THE ELEMENTS OF PROMOTING A SEXUAL PERFORMANCE OF A CHILD AND IMPROPERLY CROSS-EXAMINED THE DEFENDANT IN THE GRAND JURY PROCEEDINGS; ALTHOUGH DEFENDANT WAS PROPERLY CONVICTED, THE INDICTMENT WAS DISMISSED WITHOUT PREJUDICE (FOURTH DEPT).

The Fourth Department, reversing the conviction after trial and dismissing the indictment (without prejudice), determined the prosecutor did not properly instruct the grand jury on the law and improperly cross-examined the defendant in the grand jury proceedings: … [T]he prosecutor failed to instruct the grand jury, pursuant to the holding in People v Kent (19 NY3d […]

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AS CHARGED IN THIS CASE, CRIMINAL TRESPASS THIRD IS NOT A LESSER INCLUDED OFFENSE OF BURGLARY THIRD AND THE JURY SHOULD NOT HAVE BEEN SO INSTRUCTED (FOURTH DEPT).

The Fourth Department, reversing defendant’s criminal trespass third conviction, determined the judge should not have instructed the jury on that offense as a lesser included offense of burglary third degree: “To establish that a count is a lesser included offense in accordance with CPL 1.20 (37), a [party] must establish ‘that it is theoretically impossible […]

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​ A WAIVER OF APPEAL NOT MENTIONED UNTIL SENTENCING IN INVALID; MATTER REMITTED FOR A DECISION ON DEFENDANT’S MOTION TO REDACT STATEMENTS MADE WITHOUT COUNSEL FROM THE PREPLEA INVESTIGATION REPORT (FOURTH DEPT).

The Fourth Department, remitting the matter, determined (1) the waiver of the right to appeal was invalid because the waiver was not mentioned until sentencing, after defendant pled guilty, and (2) the judge never decided defendant’s request to have certain statements, made without counsel, redacted from the preplea investigation report: A waiver of the right […]

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THE PLEA-BARGAINED SENTENCE WAS BELOW THE STATUTORY MINIMUM, MATTER REMITTED FOR RESENTENCING OR WITHDRAWAL OF THE PLEA AGREEMENT (FOURTH DEPT). ​

​The Fourth Department remitted the matter for resentencing because the sentence imposed was below the statutory minimum: … [T]he sentence promised to defendant as part of his guilty plea and imposed upon him at sentencing, i.e., 8 years to life imprisonment, is illegal because it fell below the statutory minimum (see Penal Law §§ 70.08 […]

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ALTHOUGH THE PEOPLE’S SANDOVAL APPLICATION WAS DISCUSSED IN CHAMBERS AND THE DEFENDANT WAS NOT PRESENT, THE MAJORITY CONCLUDED THAT THE JUDGE’S SUBSEQUENTLY ASKING, IN OPEN COURT AND IN THE DEFENDANT’S PRESENCE, WHETHER THE DEFENSE WANTED TO BE HEARD ON THE APPLICATION WAS SUFFICIENT; THE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, over a dissent, determined that. although a discussion of the People’s Sandoval application was held in chambers when the defendant was not present, there was subsequent open-court proceeding in the defendant’s presence in which the judge offered the defense the opportunity to be heard on the application. The dissent argued the decision […]

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NON-RESPONDENT FATHER’S APPEAL OF THE PLACEMENT OF HIS CHILDREN WITH THE DEPARTMENT OF FAMILY AND CHILDREN’S SERVICES WAS NOT MOOT; THE CHILDREN HAD BEEN PLACED WITH RELATIVES; PLACEMENT WITH THE DEPARTMENT, AS OPPOSED TO WITH RELATIVES, TRIGGERS THE POSSIBLE FUTURE TERMINATION OF FATHER’S PARENTAL RIGHTS (FOURTH DEPT).

The Fourth Department determined non-respondent father’s appeal of the placement of his children with the department of family and children’s services was not moot. The children had been placed with relatives. Placement with the department of family and children’s services, as opposed to with relatives, triggers the possible termination of father’s parental rights: … [T]he […]

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PLAINTIFF, AGE 61, WAS HIRED FOR AS A CORRECTIONS OFFICER BUT RESIGNED AFTER TWO DAYS AT THE TRAINING ACADEMY; PLAINTIFF STATED A CAUSE OF ACTION FOR AGE DISCRIMINATION AND A HOSTILE WORK ENVIRONMENT; PLAINTIFF WAS NICKNAMED “GRANDMA” AND SUBJECTED TO RIDICULE (THIRD DEPT). ​

The Third Department, reversing Supreme Court, determined plaintiff stated a cause of action for age discrimination/hostile work environment. Plaintiff, aged 61, was hired as a corrections officer. She only lasted a couple of days at the training academy. She allegedly was immediately nicknamed “Grandma” and was subjected to ridicule: Even though plaintiff admitted that she […]

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