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WHERE CONVICTIONS UNDER MULITPLE INDICTMENTS COME UP FOR REVIEW IN THE SAME SORA HEARING, THE BOARD OF EXAMINERS OF SEX OFFENDERS SHOULD PREPARE A SINGLE RISK ASSESSMENT INSTRUMENT ENCOMPASSING ALL THE OFFENSES (SECOND DEPT).

The Second Department noted that where a defendant has been convicted of sex offenses under multiple indictment, Board of Examiners of Sex Offenders (the Board) should create one risk assessment instrument (RAI) for all the offenses: … [W]here, as here, convictions under multiple indictments come up for disposition at the same SORA hearing, the Board […]

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AFTER THE SECOND DEPARTMENT’S VACATION OF DEFENDANT’S “ENDANGERING THE WELFARE OF A PHYSICALLY DISABLED CHILD” CONVICTION (BY GUILTY PLEA) ON “ACTUAL INNOCENCE” GROUNDS WAS REVERSED BY THE COURT OF APPEALS, THE SECOND DEPARTMENT AGAIN VACATED THE CONVICTION ON “INEFFECTIVE ASSISTANCE” GROUNDS; THE MEDICAL RECORDS INDICATED THE CHILD WAS NOT BURNED BY HOT WATER, BUT RATHER SUFFERED AN ALLERGIC REACTION TO MEDICATION (SECOND DEPT). ​

The Second Department, reversing County Court, determined defendant’s motion to vacate her conviction by guilty plea on ineffective-assistance grounds should have been granted. Defendant, a nurse, was accused of endangering the welfare of a physically disabled child by bathing the child in hot water causing thermal burns. This case has a long history, including the […]

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THE EVIDENCE OF “PHYSICAL INJURY” WAS LEGALLY INSUFFICIENT; ASSAULT THIRD CONVICTION VACATED (SECOND DEPT). ​

The Second Department, vacating defendant’s assault third conviction, determined the evidence of physical injury was legally insufficient: … [T]he evidence was legally insufficient to support the defendant’s conviction of assault in the third degree, charged in count 6 of the indictment. The evidence, when viewed in the light most favorable to the prosecution … , […]

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THE DEFENDANT WAS CHARGED WITH CRIMINALLY NEGLIGENT HOMICIDE BASED UPON STRIKING THE VICTIM WITH HER CAR; IN SUMMATION THE PROSECUTOR CHARACTERIZED DEFENDANT’S ACTIONS AS INTENTIONAL, DENIGRATED THE DEFENSE THEORIES, REFERRED TO IRRELEVANT CONDUCT, AND ASSUMED FACTS NOT IN EVIDENCE; DEFENDANT WAS DEPRIVED OF A FAIR TRIAL BY THE PROSECUTORIAL MISCONDUCT; THE APPEAL WAS CONSIDERED IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined defendant was deprived of a fair trial by prosecutorial misconduct. Although some of the errors were not preserved, the appeal was considered in the interest of justice: The charge of criminally negligent homicide arose from an incident in which the defendant, while operating her motor vehicle, struck Evelyn […]

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A FAMILY OFFENSE PROCEEDING MAY BE BROUGHT IN THE COUNTY WHERE THE FAMILY MEMBER RESIDES, AS WELL AS IN THE COUNTY WHERE THE OFFENSE OCCURRED (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the family offense proceeding should not have been dismissed based on the allegation venue was improper. A family offense proceeding may be brought based upon the residence of the family member, as well as were the offense took place: A family offense proceeding pursuant to Family Court Act […]

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THE THREE-DAY FACT-FINDING HEARING RELATED TO THE NEGLECT PETITION RE: SERENA, NOT THE NEWLY-FILED DERIVATIVE NEGLECT PETITION RE: VINCENT; FAMILY COURT IMPROPERLY CONSOLIDATED THE TWO PETITIONS FOR THE DISPOSITIONAL HEARING DEPRIVING MOTHER OF DUE PROCESS (SECOND DEPT).

The Second Department, reversing Family Court, determined the court never held a hearing on the newly filed derivative neglect petition (re: Vincent). The three-day fact-finding hearing related only to the neglect petition (re: Serena). At the subsequent dispositional hearing, the court improperly consolidated the two petitions: The right to due process encompasses a “meaningful opportunity […]

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DUE TO A CONTRACTOR’S ERROR, PETITIONER’S SWIMMING POOL WAS INSTALLED SIX FEET FROM THE PROPERTY LINE, VIOLATING THE 14-FOOT SETBACK REQUIREMENT; THE ZONING BOARD OF APPEALS PROPERLY DENIED THE PETITIONER’S APPLICATION FOR A VARIANCE; SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the zoning board of appeals (ZBA) properly took into the considerations the factors prescribed by the Town Law when it denied petitioner’s application for a setback variance. The setback requirement for a swimming was 14 feet. Due to an error made by the contractor, petitioner’s pool was installed […]

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THE BANK DID NOT COMPLY WITH THE “SEPARATE ENVELOPE” REQUIREMENT OF RPAPL 1304 IN THIS FORECLOSURE ACTION ENTITLING THE DEFENDANTS TO SUMMARY JUDGMENT DISMISSING THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank in this foreclosure action was not entitled to summary judgment on its motion to confirm the referee’s report and obtain a judgment of foreclosure. The defendants demonstrated the bank did not comply with the “separate envelope” rule in RPAPL 1304, which entitled to defendants to summary […]

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CLAIMANT WAS INJURED WHEN A TRUCK STRUCK THE BASKET OF THE MAN LIFT SHE WAS USING; THE FACT THAT CLAIMANT DIDN’T FALL FROM THE BASKET DID NOT WARRANT THE DISMISSAL OF THE LABOR LAW 240(1) CAUSE OF ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the Labor Law 200 and 240(1) causes of action should not have been dismissed. Claimant was in the basket of a man lift when a car carrier (truck) struck the basket causing it to “ricochet back and forth/” The fact that claimant didn’t fall from the basket […]

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IN A REAR-END COLLISION CASE, THE ALLEGATION THAT PLAINTIFF STOPPED SUDDENLY IS NOT SUFFICIENT TO DEFEAT PLAINTIFF’S SUMMARY JUDGMENT MOTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this rear-end collision case did not raise a question of fact by alleging plaintiff stopped suddenly: … [P]laintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by averring that he had activated his right turn signal, had […]

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