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Entries by Bruce Freeman

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THE CJA FORM WAS PUT IN EVIDENCE TO PROVE WHERE DEFENDANT LIVED, WHICH WAS AN ELEMENT OF THE CRIMINAL-POSSESSION-OF-A-WEAPON CHARGE; BUT THE CJA EMPLOYEE WHO TESTIFIED WAS NOT THE EMPLOYEE WHO CREATED THE DOCUMENT; BECAUSE THE CJA EMPLOYEE COULD NOT BE CROSS-EXAMINED ABOUT THE CREATION OF THE DOCUMENT, ITS ADMISSION VIOLATED THE CONFRONTATION CLAUSE (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined the Criminal Justice Agency (CJA) form which indicated defendant lived where the weapon (the subject of the criminal-possession-of-a-weapon charge) was found constituted testimonial evidence which violated the Confrontation Clause. The witness through whom the form was admitted in evidence did not create the […]

FATHER DID NOT DEMONSTRATE HIS CONSENT TO ADOPTION WAS REQUIRED; ALTHOUGH FATHER WAS INCARCERATED FOR MUCH OF THE TIME SINCE THE CHILD WAS BORN, FATHER DID NOT SUPPORT THE CHILD OR MAKE ANY EFFORT TO GAIN PARENTAL ACCESS TO THE CHILD DURING THE PERIODS HE WAS NOT INCARCERATED (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s consent to adoption was not required. Although father, who never married mother, was incarcerated for much of the time since the child was born, and there was an order of protection prohibiting him from seeing the child, the Second Department held father could have, but did not, […]

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PETITIONER, WHO IS MILDLY AUTISTIC, DEMONSTRATED (1) HE IS NOT DISABLED WITHIN THE MEANING OF SURROGATE’S COURT PROCEDURE ACT (SCPA) ARTICLE 17-A AND (2) HE UNDERSTANDS AND IS ABLE TO MANAGE HIS FINANCIAL AFFAIRS; THE PETITION TO DISSOLVE THE GUARDIANSHIP OF HIS PROPERTY SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined petitioner, who is mildly autistic, demonstrated he did not have a disability within the meaning of Surrogate’s Court Procedure Act (SCPA) article 17-a and, therefore, his petition to dissolve the guardianship of his property should have been granted. Petitioner held a job was up-to-date on all his bills: […]

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THE POLICE WERE “ACTING IN THE PUBLIC SERVICE FUNCTION” WHEN THEY SEARCHED THE INJURED DEFENDANT AND FOUND A CARTRIDGE; DEFENDANT WAS DRIFTING IN AND OUT OF CONSCIOUSNESS; THE POLICE PROPERLY SEARCHED HIS POCKETS FOR IDENTIFICATION; SUPPRESSION DENIED (FIRST DEPT).

The First Department determined the search of plaintiff’s clothing by the police did not require suppression of the cartridge found in defendant’s pocket because the police were “acting in the public service function” in aiding the injured defendant: … [T]he hearing court … denied suppression of a cartridge recovered from defendant’s pants pocket, correctly finding […]

THE ONE COUNT INDICTMENT WAS RENDERED DUPLICITOUS BY THE BILL OF PARTICULARS AND WAS DISMISSED AFTER TRIAL; THE APPELLATE COURT NOTED THAT EVEN IF THE EVIDENCE HAD BEEN NARROWED AT TRIAL, DISMISSAL WOULD STILL BE REQUIRED BECAUSE DEFENDANT DID NOT HAVE PRETRIAL NOTICE OF THE CHARGES (FOURTH DEPT).

The Fourth Department, reversing the conviction and dismissing the indictment, determined the one count indictment was rendered duplicitous by the bill of particulars. The court noted that, even if the scope of the evidence had been narrowed at trial, reversal still would have been necessary because defendant did not have pretrial notice of the charges: […]

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DEFENDANT’S COUNSEL WAS INEFFECTIVE IN THAT COUNSEL’S EXPLANATION OF THE IMMIGRATION CONSEQUENCES OF THE GUILTY PLEA WAS WRONG; MATTER REMITTED FOR A HEARING ON WHETHER THERE IS A REASONABLE POSSIBILITIY DEFENDANT WOULD NOT HAVE PLED GUILTY HAD HE BEEN PROPERLY INFORMED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant demonstrated his attorney gave him the wrong advice about the chances he would be deported based on his guilty plea and sent the matter back for hearing on whether the is a reasonable possibility defendant would not have pled guilty if he had been properly informed: In […]

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THE AMOUNT OF RESTITUTION WAS NOT PROVEN BY A PREPONDERANCE OF THE EVIDENCE; ALTHOUGH UNPRESERVED THE ISSUE WAS CONSIDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department reversed the determination of the amount of restitution and remitted for a hearing. The error was not preserved and was considered in the interest of justice. The court further noted that the recipient of the restitution was not put on the record: … [T]he People failed to establish the victim’s actual out-of-pocket […]

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THE MAJORITY HELD THAT THE SIX-YEAR DELAY BETWEEN WHEN THE PEOPLE WERE AWARE OF THE DNA EVIDENCE LINKING DEFENDANT TO THE RAPE AND DEFENDANT’S ARREST DID NOT DEPRIVE DEFENDANT OF DUE PROCESS; THE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, over a dissent, determined defendant was not entitled to reversal of the rape conviction based on the six-year preindictment delay. The dissenter would have reversed, finding the delay deprived defendant of due process: In determining whether defendant was deprived of due process, we must consider the factors set forth in People v […]

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IN THIS “CHILD VICTIMS ACT” ACTION ALLEGING SEXUAL ABUSE IN THE 1950’S BY EMPLOYEES OF THE NOW DISSOLVED YMCA NIAGARA FALLS, THERE ARE QUESTIONS OF FACT WHETHER THE DE FACTO MERGER DOCTRINE APPLIES RENDERING YMCA BUFFALO LIABLE FOR THE TORTS OF YMCA NIAGARA FALLS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined this “Child Victims Act” action against YMCA Buffalo, alleging sexual abuse in the 1950’s by employees at the now dissolved YMCA Niagara Falls, should not have been dismissed. The decision is comprehensive and cannot be fairly summarized here. There exist triable issues of fact whether the de facto […]

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THERE WAS AN “UNWARNED” THREE-FOOT DROP ON THE OTHER SIDE OF A DOOR IN A REMOTE AREA OF THE HOSPITAL; PLAINTIFF, A HOSPITAL WORKER, WAS INJURED BY THE THREE-FOOT DROP; THE ARCHITECTURAL MALPRACTICE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND NO DUTY WAS OWED TO THE PLAINTIFF; THE CONSTRUCTION COMPANY JUSTIFIABLY RELIED ON THE ARCHITECT’S SPECIFICATIONS AND COULD NOT BE HELD LIABLE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the architectural malpractice cause of action should not have been dismissed. Plaintiff, a hospital maintenance groundskeeper, was injured by a three-foot drop on the other side of a door for which there were no warning signs. Although the door was in a remote area of the hospital, […]

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