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Entries by Bruce Freeman

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ALTHOUGH FATHER FAILED TO APPEAR, HIS COUNSEL APPEARED AND FATHER WAS THEREFORE NOT IN DEFAULT; BECAUSE FATHER WAS NOT IN DEFAULT, APPEAL IS NOT PRECLUDED (FOURTH DEPT).

The Fourth Department, vacating the portions of the order entered on default, determined father’s failure to appear was not a default because his counsel appeared. Because father was not in default, appeal is not precluded: We agree with the father that Family Court erred in entering the order upon his default based on his failure […]

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DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO INTERVIEW A POTENTIALLY EXCULPATORY WITNESS; MOTION TO VACATE THE MURDER CONVICTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant’s motion to vacate his conviction on ineffective assistance grounds should have been granted. Defense counsel did not interview a witness who, based on the witness’s testimony at the hearing on the motion to vacate, would have testified defendant was not at the scene of the shooting: … […]

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DEFENDANT PLED GUILTY TO ATTEMPTED GANG ASSAULT, WHICH IS A LEGAL IMPOSSIBILITY AT TRIAL; DEFENDANT WAS ENTITLED TO A HEARING ON WHETHER HIS PLEA WAS RENDERED INVOLUNTARY BY COUNSEL’S INACCURATE ADVICE ABOUT THE POSSIBILITY OF CONVICTION; MATTER REMITTED (FOURTH DEPT).

The Fourth Department determined there should be a hearing on whether defendant’s plea to attempted gang assault was involuntary. Defendant contended the plea was based on inaccurate advice from counsel. “Attempted gang assault” is a legal impossibility for trial purposes: … [W]e agree with defendant that “attempted gang assault in the second degree is a […]

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THE PROOF DEFENDANT CONSTRUCTIVELY POSSESSED A FIREARM FOUND IN THE CEILING OF A HOUSE WHERE DEFENDANT WAS A GUEST WAS LEGALLY INSUFFICIENT; DNA EVIDENCE MAY HAVE DEMONSTRATED DEFENDANT POSSESSED THE FIREARM AT SOME POINT IN TIME, BUT IT DID NOT DEMONSTRATE CONSTRUCTIVE POSSESSION AT THE TIME THE FIREARM WAS SEIZED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, over a dissent, determined the proof defendant constructively possessed a firearm was legally insufficient. The firearm was in the drop ceiling of a living room in which defendant was present as a guest. DNA evidence may have demonstrated defendant possessed the firearm at a point in time, but did […]

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THE POLICE DID NOT HAVE PROBABLE CAUSE TO BELIEVE DEFENDANT HAD COMMITTED OR WAS COMMITTING A CRIME WHEN THEY BLOCKED DEFENDANT’S VEHICLE WITH THE POLICE VEHICLE, WHICH CONSTITUTES A SEIZURE; PLEA VACATED AND SUPPRESSION MOTION GRANTED (FOURTH DEPT).

The Fourth Department, vacating defendant’s plea and granting defendant’s suppression motion, determined the police did not have probable cause to seize defendant’s vehicle by blocking its exit with the police vehicle: Police officer testimony at the suppression hearing established that, at the time the officers stopped their vehicle in front of defendant’s vehicle, they had […]

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PLAINTIFF WAS SEEKING THE PROCEEDS OF A JOINT VENTURE, WHICH, UNDER PARTNERSHIP LAW, INVOLVES PERSONAL PROPERTY, NOT REAL PROPERTY; PLAINTIFF HAD NO INTEREST IN THE REAL PROPERTY WHICH WAS TO BE USED AS AN INN OPERATED AS A JOINT VENTURE; THERFORE THE LIS PENDENS FILED BY PLAINTIFF SHOULD HAVE BEEN CANCELLED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined there was no relationship between plaintiff’s action seeking the assets of a joint venture and the ownership of the real property associated with the joint venture (to be used as an inn). Therefore defendants’ motion to cancel the lis pendens should have been granted: “A notice of pendency […]

THE PLEA COLLOQUY IN WHICH DEFENDANT STATED HE CARED FOR THE THREE-YEAR-OLD VICTIM NEGATED AN ESSENTIAL ELEMENT OF DEPRAVED INDIFFERENCE MURDER; PLEA VACATED (FOURTH DEPT).

The Fourth Department, vacating defendant’s plea to depraved indifference murder, determined the plea colloquy negated an essential element of the offense: … [W]e agree with defendant that, although his admissions during the plea allocution established the mens rea element of recklessness … , his recitation of the facts underlying the charge of murder in the […]

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THERE WAS NO EVIDENCE LINKING DEFENDANT TO A BURGLARY EXCEPT A PARTIAL FINGERPRINT FOUND AT THE SCENE WHICH ONLY MATCHED 15 TO 22.5% OF THE CHARACTERISTICS OF DEFENDANT’S INKED PRINT; THE BURGLARY CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s burglary conviction, determined the evidence that a partial fingerprint from the burglary scene matched the defendant was too weak to support the conviction. The conviction was therefore against the weight of the evidence: On cross-examination, the fingerprint examiner agreed that her opinion is subjective, that two examiners may reach different […]

THE TRANSFER OF DECEDENT’S HOME TO THE TWO CHILDREN WHO WERE CARING FOR HIM WAS COMPENSATION FOR THE CAREGIVERS PURSUANT TO AN AGREEMENT, NOT A GIFT (WHICH WOULD NOT HAVE BEEN AUTHORIZED BY THE POWER OF ATTORNEY) (FOURTH DEPT). ​

The Fourth Department, over a two-justice dissent, determined the transfer of decedent’s home to the two children who were caring for decedent was demonstrated to be compensation for the caregivers pursuant to an agreement, not a gift (the power of attorney did not authorize agents to make major gifts): The court concluded that the transfer […]

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MOLINEUX EVIDENCE OF A PRIOR BURGLARY OF THE ROBBERY-VICTIM’S HOME TO SHOW THE INTENT TO COMMIT ROBBERY AND GRAND LARCENY SHOULD NOT HAVE BEEN ADMITTED; THE INTENT TO COMMIT ROBBERY AND GRAND LARCENY WAS DEMONSTRATED BY THE VICTIM’S TESTIMONY RENDERING EVIDENCE OF THE PRIOR BURGLARY TOO PREJUDICIAL (FOURTH DEPT). ​

The Fourth Department, reversing defendant’s robbery and grand larceny convictions, determined Molineux evidence of a burglary of the robbery-victim’s home three days before the robbery should not have been admitted to show intent. The intent to rob was demonstrated by the victim’s testimony, rendering proof of the prior burglary more prejudicial than probative: … [E]vidence […]

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