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Entries by Bruce Freeman

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THE JUDGE FAILED TO INQUIRE FURTHER DURING THE PLEA ALLOCUTION WHEN DEFENDANT SAID HE DID NOT VIOLATE THE ORDER OF PROTECTION INTENTIONALLY; THERE IS NO NEED TO PRESERVE A DEFECTIVE-ALLOCUTION ERROR; CONVICTION REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction of an aggravated family offense by guilty plea, determined the judge should have inquired further when defendant stated he did not intend to violate the order of protection when he sent a letter to the protected person. A defective allocution will be considered on appeal in the absence of […]

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HERE IT WAS REVERSIBLE ERROR TO PLACE THE DEFENDANT IN HANDCUFFS, WITHOUT EXPLANATION, BEFORE THE JURY RETURNED TO ANNOUNCE THE VERDICT; AT THAT POINT THE DEFENDANT IS CONSIDERED INNOCENT AND RESTRAINING THE DEFENDANT WITHOUT EXPLANATION IS CONSTITUTIONALLY PROHIBITED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the defendant should not have been handcuffed when the jury returned to announce the verdict: At that point the defendant is considered innocent and the defendant may be prejudiced if the jury is polled. Here defense counsel expressly objected to the handcuffs on […]

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THE ATTORNEY GENERAL’S OFFICE WAS MONITORING A WIRETAP WHEN DEFENDANT WAS OVERHEARD IN A CALL WHICH HAD ORIGINATED FROM THE COUNTY JAIL; LOCAL POLICE WERE ALERTED TO THE CONVERSATION AND THE POLICE OBTAINED THE RECORDING FROM THE JAIL; ALTHOUGH THE JAIL RECORDING WAS NOT AN “INTERCEPTED CONVERSATION” WITHIN THE MEANING OF CPL 700.70, IT WAS EVIDENCE DERIVED FROM AN “INTERCEPTED CONVERSTION” TRIGGERING THE CPL 700.70 NOTICE REQUIREMENTS (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the appellate division, determined the failure to provide defendant with notice of a recorded phone conversation was improper. The Attorney General’s office was monitoring a wiretap in an unrelated case when defendant was overheard in a call originating from the county jail talking […]

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THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) MAY APPROVE MINING WHERE MINING IS OTHERWISE PROHIBITED IF THE MINING IS AN UNDISPUTED PRIOR NONCONFORMING USE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, determined the Department of Environment Conservation (DEC) can renew mining permits where mining is an undisputed prior nonconforming use. The “mining” at issue in this case is a sand and gravel mine on Long Island. Although mining was a permitted use when the mine […]

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THE MOTION TO AMEND THE COMPLAINT SHOULD NOT HAVE BEEN DENIED ON THE GROUND THE PROPOSED CHANGES WERE NOT “REDLINED” (FIRST DEPT).

The First Department, reversing Supreme Court, determined the motion to amend the complaint should not have been denied on the ground the proposed changes were not “redlined” (apparently referring to the failure to mark the proposed changes to make them more visible): The court improvidently exercised its discretion in denying plaintiff’s cross motion solely on […]

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THE ADMISSION OF AN UNNOTICED STATEMENT BY DEFENDANT WAS NOT HARMLESS ERROR; ALTHOUGH THE PEOPLE HAD DISCLOSED THE INTERVIEW IN WHICH THE STATEMENT WAS MADE, THEY DID NOT DISCLOSE THE SPECIFIC STATEMENT; THE DEFENDANT MOVED TO PRECLUDE THE STATEMENT AT TRIAL (FIRST DEPT).

The First Department, reversing defendant’s convictions, determined the evidence defendant knew the codefendant was armed and shared the codefendant’s intent to cause serious injury was legally insufficient. Although the robbery second conviction was based on legally sufficient evidence, an unnoticed statement was allowed in evidence at trial, a reversible error: … [D]efendant is entitled to […]

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THE PEOPLE DID NOT MEET THEIR “BURDEN OF GOING FORWARD” BY PRESENTING SUFFICIENT PROOF OF THE LEGALITY OF POLICE CONDUCT AT THE SUPPRESSION HEARING; THERE WAS NO EVIDENCE THE OFFICERS WHO ARRESTED DEFENDANT WERE MADE AWARE OF THE CO-DEFENDANT’S STATEMENT WHICH WAS THE BASIS OF THE ARREST; THE FACT THAT GAPS IN THE PEOPLE’S PROOF MAY HAVE BEEN FILLED IN BY THE DEFENDANT’S TESTIMONY AT THE HEARING DIDN’T CURE THE DEFICIENCY (FIRST DEPT).

The First Department, reversing defendant’s conviction and suppressing his postarrest statement, determined the People did not meet their “burden of coming forward” with proof of the legality of police conduct. The fact that some of the gaps in the proof might have been filled by the defendant’s testimony at the suppression hearing did not cure […]

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THE PLEA ALLOCUTION RAISED THE POSSIBILITY OF DURESS AS AN AFFIRMATIVE DEFENSE; THE JUDGE MADE NO INQUIRY INTO THE VALIDITY OF PLEA; CONVICTION REVERSED DESPITE DEFENDANT’S FAILURE TO MOVE TO WITHDRAW THE PLEA (SECOND DEPT).

The Second Department, reversing defendant’s conviction by guilty plea, determined the plea allocution raised duress as a possible affirmative defense and the judge did not inquire into the validity of the plea. The issue was considered on appeal despite the failure to move to withdraw the plea: To be valid, a plea of guilty must […]

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AFTER COMPLAINING THAT A JUROR APPEARED TO BE SLEEPING AT TIMES, DEFENSE COUNSEL MADE A MOTION TO DISQUALIFY HIM; THE JUDGE DID NOT MAKE AN ADEQUATE INQUIRY BEFORE DENYING THE MOTION; CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the judge did not make a sufficient inquiry of juror number 2 after complaints from defense counsel and the prosecutor that he appeared to be sleeping at times. The judge’s denial of the defense motion to disqualify the juror was therefore based on speculation: The court never asked […]

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