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ONE PLAINTIFF-TENANT TESTIFIED HE MADE SEVERAL COMPLAINTS TO THE LANDLORD DEFENDANTS ABOUT THE TENANT WHO SET FIRE TO THE APARTMENT BUILDING, INFORMING THE DEFENDANTS THAT THE TENANT THREATENED “TO KILL EVERYONE” IN THE BUILDING AND WAS SEEN CARRYING GASOLINE TANKS INTO THE BUILDING; THE DEFENDANT LANDLORDS DID NOT HAVE A DUTY TO PREVENT THE TENANT FROM STARTING THE FIRE (FIRST DEPT).

The First Department, reversing Supreme Court, determined the landlord defendants did not have a duty to investigate, monitor, or control a tenant who set fire to the five-story building injuring the plaintiff-tenants: One of the plaintiffs testified that he made several complaints to defendants concerning the tenant’s behavior before the incident. Specifically, he reported to […]

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MOTHER’S MENTAL ILLNESS AND HER REQUEST FOR RESPITE CARE BECAUSE SHE WAS OVERWHELMED DID NOT SUPPORT A NEGLECT FINDING; THERE WAS NO EVIDENCE OF AN IMMINENT RISK TO THE CHILDREN (FIRST DEPT).

The First Department, reversing Family Court, determined the evidence of mother’s mental illness did not support the finding that she neglected the children: The court’s determination that the mother neglected the subject children was not supported by a preponderance of the evidence … . Neglect occurs when a child’s “physical, mental or emotional condition has […]

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DEFENDANT, BY FIRING HIS ATTORNEY AND REFUSING TO BE PRESENT AT TRIAL, WAIVED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND HIS RIGHT TO BE PRESENT AT HIS TRIAL (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a concurrence and an extensive dissent, determined defendant, by firing his attorney and refusing to be present during the trial, waived his right to effective assistance of counsel and his right to be present at his trial. The court further determined that the […]

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THE ADMISSION OF EVIDENCE OF DEFENDANT’S PRIOR POSSESSION OF DRUGS TO PROVE CONSTRUCTIVE POSSESSION OF DRUGS FOUND IN A SHARED APARTMENT WAS REVERSIBLE ERROR; THE PRIOR POSSESSION CONVICTION STEMMED FROM DRUGS FOUND IN DEFENDANT’S VEHICLE, TWO YEARS BEFORE; THEREFORE THE PRIOR CRIME WAS NOT LOGICALLY CONNECTED TO ANY ISSUE IN THE CASE; THE EVIDENCE WAS ERRONEOUSLY ADMITTED SOLELY TO PROVE DEFENDANT’S PROPENSITY TO POSSESS DRUGS (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Troutman, over a three-judge dissent, determined the evidence of defendant’s prior possession of drugs found in his vehicle two years before was erroneously admitted to prove defendant’s constructive possession of drugs found in a shared apartment: Generally, evidence of a defendant’s […]

NEW YORK’S MARIHUANA REGULATION AND TAXATION ACT (MRTA) IS NOT PREEMPTED BY THE FEDERAL CONTROLLED SUBSTANCES ACT (CSA) (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Fisher, determined New York’s Marihuana Regulation and Taxation Act (MRTA) which allows the sale and use of marihuana, is not preempted by the federal Controlled Substance Act, which does not allow the sale and use of marihuana: … [W]e turn to petitioners’ contention that the challenged […]

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ALTHOUGH THE COURT FOUND THAT THE DEPUTY DID NOT SOUND HER AIR HORN BEFORE THE INTERSECTION COLLISION WITH PLAINTIFFS’ VEHICLE, THERE WAS SUFFICIENT EVIDENCE THAT THE DEPUTY TOOK PRECAUTIONS BEFORE ENTERING THE INTERSECTION; THEREFORE THE COUNTY DEMONSTRATED THE DEPUTY DID NOT ACT WITH RECKLESS DISREGARD FOR THE SAFETY OF OTHERS IN VIOLATION OF VEHICLE AND TRAFFIC LAW 1104 (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Wilson, over an extensive dissent, determined the county was entitled to summary judgment in this negligence suit stemming from an intersection accident involving a sheriff’s deputy (Wong) who was responding to an emergency call. Although the court found that Wong did […]

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TWO PEOPLE WERE SHOT IN A DRIVE-BY SHOOTING; DEFENDANT, IN THE PLEA ALLOCUTIONS, DID NOT ADMIT TO FIRING SEPARATELY AT EACH VICTIM; THEREFORE THE PEOPLE DID NOT MEET THEIR BURDEN TO SHOW THE COMMISSION OF TWO DISTINCT CRIMES; CONSECUTIVE SENTENCES COULD NOT BE IMPOSED (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Rivera, over a two-judge dissent, determined the prosecutor did not demonstrate that the two victims of this drive-by shooting were struck by different bullets fired separately at each, causing separate injuries to each. Therefore the judge could not impose consecutive sentences. […]

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THE CIRCUMSTANCES SURROUNDING THE IDENTIFICATION OF DEFENDANT FROM A CELL PHONE PICTURE TAKEN BY A POLICE OFFICER AT THE POLICE STATION WERE UNDULY SUGGESTIVE; THERE WAS NO PROBABLE CAUSE FOR DEFENDANT’S ARREST AND THE EVIDENCE SEIZED SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT). ​

The First Department, reversing Supreme Court’s finding that there was probable cause to arrest the defendant and suppressing the seized evidence, determined that the circumstances surrounding the identification of the defendant by a robbery victim (the mother) from a cell-phone picture of defendant taken by a police officer were unduly suggestive: Because, while being escorted […]

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THE ACT OF SIMPLE POSSESSSION OF A WEAPON WAS COMPLETE BEFORE THE WEAPON WAS USED TO SHOOT THE VICTIM DURING A ROBBERY; THEREFORE, DESPITE THE OVERLAP OF THE ELEMENTS OF SIMPLE POSSESSION OF A WEAPON AND THE ELEMENTS OF FELONY MURDER AND ROBBERY, CONSECUTIVE SENTENCES WERE PROPERLY IMPOSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, affirming the Appellate Division, determined the sentence for simple possession of a weapon was properly imposed to run consecutively to the concurrent sentences for felony murder and robbery: Penal Law § 70.25 (2) governs consecutive sentencing, providing that “[w]hen more than one sentence of […]

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THE JURY’S CONCLUSION THAT THE BURGLARY VICTIM SUFFERED “PHYSICAL INJURY” WAS AGAINST THE WEIGHT OF THE EVIDENCE; THE ONLY EVIDENCE WAS THE VICTIM’S TESTIMONY HE SUFFERED PAIN AT 6 ON A SCALE OF 1 TO 10 (SECOND DEPT).

The Second Department, vacating defendant’s burglary convictions, applying a weight-of-the-evidence analysis, determined the proof the victim suffered “physical injury,” an element of the offenses, was insufficient: The evidence, properly weighed, does not prove beyond a reasonable doubt that the victim sustained a physical injury … . Although the victim testified that he suffered pain as […]

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