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Entries by Bruce Freeman

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THE JURY SHOULD NOT HAVE BEEN INSTRUCTED ON CONSTRUCTIVE POSSESSION IN THIS CRIMIINAL POSSESSION OF A WEAPON PROSECUTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court and ordering a new trial, determined the jury should not have been instructed on constructive possession in this criminal possession of a weapon prosecution: … [W]e agree with defendant that the court erred in instructing the jury on constructive possession because there is no view of the evidence from […]

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THE PEOPLE DID NOT DEMONSTRATE THE OFFICERS WHO MADE THE TRAFFIC STOP HAD THE TRAINING AND QUALIFICATIONS TO MAKE A VISUAL ESTIMATE OF THE SPEED OF A VEHICLE; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT),

The Fourth Department, granting the suppression motion and dismissing the indictment, over a dissent, determined the People did not demonstrate the legality of the traffic stop. Two police officers testified the stop was based on a visual estimate of the vehicle’s speed, 40 to 45 miles per hour in a 30 mph zone. But neither […]

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HERE THE DEFENDANT CLAIMED HE ACTED IN SELF-DEFENSE WHEN HE STABBED THE VICTIM WITH A PEN KNIFE; THE DEFENDANT SOUGHT TO INTRODUCE EVIDENCE OF THE VICTIM’S PRIOR VIOLENT ACTS IN SUPPORT OF THE JUSTIFICATION DEFENSE; THE TRIAL JUDGE INSTRUCTED THE JURY ON THE JUSTIFICATION DEFENSE BUT DID NOT ALLOW EVIDENCE OF THE VICTIM’S PRIOR VIOLENT ACTS TO BE CONSIDERED ON THAT ISSUE; THE COURT OF APPEALS AFFIRMED, UPHOLDING THE RULE THAT THE VICTIM’S PRIOR VIOLENT ACTS ARE NOT ADMISSIBLE PROOF OF JUSTIFICATION UNLESS THE DEFENDANT WAS AWARE OF THE PRIOR VIOLENT ACTS AT THE TIME OF THE INCIDENT (CT APP).

The Court of Appeals, over a two-judge dissenting opinion, affirming defendant’s conviction, determined the rule that evidence of a victim’s prior violent acts should not be admitted in support of the justification defense unless defendant was aware of those prior violent acts at the time of the incident. Here there was evidence the victim had […]

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PLAINTIFFS-TENANTS DID NOT SHOW DEFENDANT LANDLORD ENGAGED IN A FRAUDULANT SCHEME TO DEREGULATE; THEREFORE THE DEFAULT FORMULA TO SET THE BASE DATE RENT PURSUANT TO THE RENT STABILIZATION CODE SHOULD NOT BE USED (CT APP).

The Court of Appeals, reversing the Appellate Division, determined that the default formula for determining the plaintiffs-tenants’ legal regulated rent pursuant to the Rent Stabilization Code should not be used because there was no evidence of a fraudulent scheme to deregulate. Rather defendants’ deregulation was based upon a misinterpretation of the law: Matter of Regina […]

BOTH THE HIPAA PRIVACY RULE AND THE PUBLIC OFFICERS LAW APPLY TO THE FOIL REQUEST FOR RECORDS DOCUMENTING INJURIES SUFFERED BY ATHLETES USING THE OLYMPIC TRAINING FACILITIES IN THE ADIRONDACK PARK; THE HIPAA DEIDENTIFICATION PROCEDURE SHOULD BE APPLIED TO THE REQUESTED RECORDS (THIRD DEPT). ​

The Third Department noted that the HIPAA deidentification procedure was applicable to the FOIL request for sports-related injuries at the Olympic facilities in the Adirondack Park. The FOIL request was made to the respondent NYS Olympic Regional Development Authority: … [T]he health-related information contained in the reports at issue is subject to the protections of […]

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CONFLICTING EXPERT EVIDENCE ABOUT ICE ON THE PARKING LOT BEFORE THE SNOW STORM BEGAN PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL ACTION (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined there were questions of fact raised by conflicting expert evidence in this ice slip and fall case. Although it was snowing at the time of the fall, there were questions of fact whether the ice was there before it began snowing: … [W]e find […]

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THE NEGLIGENCE CAUSE OF ACTION AGAINST PLAINTIFFS’ INSURANCE BROKERS SHOULD NOT HAVE BEEN DISMISSED; PLAINTIFFS ALLEGED THE BROKERS FAILED TO PROCURE ADEQUATE COVERAGE AND FAILED TO INFORM PLAINTIFFS OF THE DEFINITIONS AND TERMS OF THE POLICY (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the plaintiffs-insureds’ negligence cause of action against their insurance brokers should not have been dismissed: Supreme Court improperly dismissed plaintiffs’ causes of action for negligence against Thompson Flanagan and WIA, the brokers. Plaintiffs sufficiently pleaded a cause of action for negligence against the brokers which was distinct […]

THE MENTAL HYGIENE LAW DOES NOT REQUIRE A TESTIMONIAL HEARING BEFORE THE REMOVAL OF A GUARDIAN FOR AN INCAPACITATED PERSON (FIRST DEPT).

The First Department noted that removal of a guardian does not require a testimonial hearing: The Mental Hygiene Law does not support appellants’ contention that they were entitled to a testimonial hearing in this case before being removed. Mental Hygiene Law § 81.35 provides that a guardian may be removed when she or he “fails […]

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THE UNEXPLAINED DELAY OF 38 MONTHS IN SEEKING A WARRANT FOR A DNA SAMPLE FROM THE DEFENDANT, WHO HAD BEEN IDENTIFIED AS THE RAPIST BY THE COMPLAINANT RIGHT AWAY, VIOLATED DEFENDANT’S RIGHT TO A SPEEDY TRIAL; CONVICTION REVERSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a dissenting opinion, reversing the Appellate Division, determined that the inexplicable delay in seeking a DNA sample from the defendant in this rape case violated defendant’s right to a speedy trial. The complainant reported the rape right away and named the defendant as […]

PURSUANT TO THE MARIHUANA REGULATION AND TAXATION ACT (MRTA) (1) DEFENDANT’S MARIHUANA CONVICTION WAS PROPERLY VACATED (2) ANOTHER CONVICTION WAS PROPERLY SUBSTITUTED FOR THE VACATED CONVICTION (3) BUT COUNTY COURT COMMITTED REVERSIBLE ERROR BY FAILING TO CONSIDER WHETHER SUBSTITUTING ANOTHER CONVICTION SERVED THE INTEREST OF JUSTICE; MATTER REMITTED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, reversing County Court, determined: (1) defendant’s marijuana conviction was properly vacated under the Marihuana Regulation and Taxation Act (MRTA); (2) once vacated, the court had the authority to substitute a conviction for the vacated conviction (which it did); but (3) the court committed reversible error […]

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