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Entries by Bruce Freeman

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IT WAS AN ABUSE OF DISCRETION TO RETURN THE CHILD TO MOTHER DURING THE PENDENCY OF NEGLECT PROCEEDINGS; MOTHER HAD INJURED THE CHILD AND THERE WAS INSUFFICIENT EVIDENCE THE IMPOSITION OF CONDITIONS FOR THE CHILD’S RETURN WILL ENSURE THE CHILD’S SAFETY (FIRST DEPT).

The First Department, reversing Family Court, determined mother’s application during the neglect proceedings for the return of her child should have been denied: Family Court’s finding that the child should be returned to the mother lacked a sound and substantial basis in the record … .  Although the court properly determined, based on the evidence […]

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DEFENDANT WAS NOT NOTIFIED THAT IF HE FAILED TO PAY RESTITUTION HIS SENTENCE WOULD BE ENHANCED; ENHANCED SENTENCE VACATED AND AGREED-UPON SENTENCE IMPOSED (THIRD DEPT).

The Third Department, vacating defendant’s enhanced sentence and imposing the agreed-upon sentence, determined defendant was not given notice that his failure to pay restitution would result in an enhanced sentence. The agreed sentence was 2 to 6 years and the enhanced sentence was 4 to 12 years: Defendant argues that County Court erred in imposing […]

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THE RECORD DID NOT DEMONSTRATE COMPLIANCE WITH THE WAIVER-OF-INDICTMENT PROCEDURE, A JURISDICTIONAL DEFECT; PLEA VACATED; PLEA TO A SUBSEQUENT INDICTMENT INDUCED BY A CONCURRENT SENTENCE PROMISE VACATED AS WELL (FIRST DEPT).

The First Department, reversing defendant’s convictions by guilty pleas, determined the failure to comply with the waiver-of-indictment procedure required vacation of the plea, as well as the vacation of a plea induced by a concurrent sentence promise: The record fails to demonstrate compliance with CPL 195.20. There is no evidence that defendant signed the indictment […]

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PLAINTIFF WAS SEVERELY INJURED IN A FORKLIFT ACCIDENT AND BROUGHT THIS ACTION ALLEGING DEFECTIVE DESIGN; THERE WAS A DEFENSE VERDICT WHICH WAS REVERSED BECAUSE SOME EXPERT TESTIMONY SHOULD NOT HAVE BEEN ADMITTED AND SOME EXPERT TESTIMONY SHOULD NOT HAVE BEEN STRUCK (THIRD DEPT).

The Third Department, reversing the judgment finding the defendant’s forklift was not defectively designed, determined the admission and exclusion of expert evidence required a new trial. Plaintiff’s leg was crushed when the forklift he was operating struck a support beam in a warehouse. A portion of his leg was amputated. Defendant’s expert’s analysis was based […]

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THE SURETY BOND, A CONTRACT, WAS UNAMBIGUOUS AND MADE NO MENTION OF PREJUDGMENT INTEREST; THE SURETY THEREFORE WAS NOT OBLIGATED TO PAY PREJUDGMENT INTEREST; THE ARGUMENT THAT CPLR 5001 MAKES PAYMENT OF PREJUDGMENT INTEREST MANDATORY WAS REJECTED (THIRD DEPT).

The Third Department, modifying Supreme Court, determined that the terms of the surety bond governed whether the surety was obligated to pay prejudgment interest. Because the bond, a contract, did not mention prejudgment interest, the surety was not obligated to pay it. The argument that CPLR 5001 makes an award of prejudgment interest mandatory, regardless […]

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THERE WAS NO PROOF THE OFFICER WHO FRISKED THE DEFENDANT AND REMOVED A WALLET FROM DEFENDANT’S POCKET SUSPECTED THE WALLET WAS A WEAPON; THE WALLET, WHICH HAD BEEN STOLEN FROM THE VICTIM, SHOULD HAVE BEEN SUPPRESSED; BECAUSE THE WALLET TENDED TO IDENTIFY DEFENDANT AS THE ROBBER, THE ERROR WAS NOT HARMLESS; NEW TRIAL ORDERED ON THE ROBBERY-RELATED OFFENSES (SECOND DEPT).

The Second Department, reversing the robbery-related convictions and ordering a new trial, determined the police did not have a lawful basis for removing a wallet from defendant’s pocket and examining its contents. There was no evidence that the lawful frisk of the defendant indicated the presence of a weapon. The wallet, which had been stolen […]

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THE CLASS HAD STANDING TO SEEK DECLARATORY, INJUNCTIVE AND MONETARY RELIEF BASED UPON ALLEGATIONS THE COUNTY REAL PROPERTY TAX SYSTEM WAS IRRATIONAL, DISCRIMINATORY AND UNCONSTITUTIONAL RESULTING IN A SHIFT OF THE TAX BURDEN FROM THE WEALTHIER PREDOMINANTLY WHITE COMMUNITIES TO THE LOWER INCOME PREDOMINANTLY NONWHITE COMMUNITIES (SECOND DEPT). ​

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Barros, determined the class of property owners in Nassau County had standing to  seek declaratory, injunctive and monetary relief stemming from the “irrational, discriminatory and unconstitutional” real property tax system: … [T]he plaintiffs allege that the County’s tax assessment policies and procedures, i.e., […]

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DEFENDANT’S CONVICTION WAS REVERSED AND DEFENDANT APPLIED FOR BAIL; SUPREME COURT DENIED THE REQUEST WITHOUT THE REQUIRED EXPLANATION AND WITHOUT MAKING THE REQUIRED FLIGHT RISK DETERMINATION; DEFENDANT FILED A HABEAS CORPUS PETITION; PETITION HELD IN ABEYANCE PENDING THE ISSUANCE OF A NEW SECURING ORDER (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Halligan, over a two-judge concurring opinion, determined the habeas petition should be held in abeyance and a new securing order which complies with Criminal Procedure Law (CPL) 510.10 should be issued: While awaiting retrial after his criminal conviction was reversed on […]

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HERE THE OFFICE OF COURT ADMINISTRATION’S (OCA’S) BLANKET ASSERTION OF THE ATTORNEY-CLIENT PRIVILEGE RE: THE FOIL REQUEST FOR COMMUNICATIONS BETWEEN OCA AND JUDGES WAS REJECTED; ALTHOUGH UPON REMAND THE PRIVILEGE MAY BE SHOWN TO APPLY TO INIDVIDUAL, IDENTIFIED DOCUMENTS, THE OCA DID NOT ESTABLISH AN ATTORNEY-CLIENT RELATIONSHIP WITH ALL THE JUDGES SUCH THAT A BLANKET ASSERTION OF THE PRIVILEGE WAS APPROPRIATE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Halligan, over a dissenting opinion, determined that the Office of Court Administration (OCA) was not entitled to a blanket assertion of attorney-client privilege in response to a FOIL request by the NY Civil Liberties Union (NYCLU) that followed the leak of […]

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