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Entries by Bruce Freeman

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A LOCAL ONLINE NEWS OUTLET SHOULD NOT HAVE BEEN EXCLUDED FROM A FAMILY COURT HEARING REGARDING WHETHER A DEPUTY COUNTY ATTORNEY SHOULD BE DISQUALIFIED FROM A NEGLECT PROCEEDING ON CONFLICT OF INTEREST GROUNDS; THE OUTLET IS ENTITLED TO A TRANSCRIPT OF THE HEARING (FOURTH DEPT). ​

The Fourth Department, reversing Family Court, determined appellant, an online local news outlet, should not have been excluded from an attorney-disqualification hearing and was entitled to a transcript of the hearing. The respondent in a neglect proceeding had moved to disqualify the deputy county attorney on conflict of interest grounds. Appellant’s owner deemed the motion […]

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DEFENDANTS’ OWN SUBMISSIONS DEMONSTRATED (1) PLAINTIFF OWNED THE PROPERTY LEFT IN THE HOUSE PURCHASED BY DEFENDANTS, (2) PLAINTIFF HAD REMOVED SOME OF THE PROPERTY, AND (3) PLAINTIFF ASKED FOR MORE TIME TO REMOVE MORE PROPERTY; THOSE FACTS NEGATED DEFENDANTS’ ALLEGATION PLAINTIFF HAD ABANDONDED THE PROPERTY; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT DISMISSING THE CONVERSION CAUSE OF ACTION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined defendants’ motion for summary judgment dismissing the conversion cause of action should not have been granted. Defendants’ own submissions demonstrated plaintiff’s ownership of the property, his removal of some of the property, and his request for more time to remove the rest. The property was in a house […]

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AFTER A VALID TRAFFIC STOP BASED ON THE LICENSE PLATES NOT MATCHING THE VEHICLE, DEFENDANT PRESENTED HIS TEMPORARY REGISTRATION AND EXPLAINED THE PLATES HAD BEEN TRANSFERRED FROM A DIFFERENT VEHICLE; AT THAT POINT THE AUTHORIZATION TO DETAIN DEFENDANT CEASED; THE SEIZED DRUGS SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT). ​

The Fourth Department, reversing defendant possession of a controlled substance conviction and dismissing the indictment, determined the police, after making a valid traffic stop of defendant’s vehicle, did not have the authority to detain him after he presented his temporary registration and explained that the license plates had been transferred from another vehicle: … [T]he […]

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THERE WAS NO PROOF DEFENDANT EXERCISED DOMINION AND CONTROL OVER THE AREA WHERE THE DRUGS WERE FOUND; DEFENDANT’S MERE PRESENCE IN THE VICINITY OF THE DRUGS DID NOT PROVE HIS POSSESSION OF THE DRUGS (FOURTH DEPT).

The Fourth Department, reversing defendant’s possession of a controlled substance conviction and dismissing the indictment, determined defendant’s constructive possession of the drugs was not demonstrated. There was no proof defendant exercised dominion and control over the area in which the drugs were found, as opposed to merely being present in the vicinity of the drugs: […]

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THE JUDGE’S FAILURE TO PRONOUNCE THE DEFINITE TERM COMPONENT OF DEFENDANT’S SENTENCE REQUIRED VACATION OF THE SENTENCE AND REMITTAL FOR RESENTENCING; THE ISSUE SURVIVES A WAIVER OF APPEAL (FOURTH DEPT).

The Fourth Department, vacating defendant’s sentence and remitting for resentencing, determined the definite term component of the sentence was not pronounced by the court: CPL 380.20 provides that a court “must pronounce sentence in every case where a conviction is entered.” That statutory requirement is “unyielding” … . A violation of CPL 380.20 “may be […]

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IN RESPONSE TO A BATSON INQUIRY, THE PROSECUTOR’S REASON FOR STRIKING THE PROSPECTIVE JUROR IN FACT RELATED TO ANOTHER PROSPECTIVE JUROR FOR WHOM DEFENDANT HAD EXERCISED A PEREMPTORY CHALLENGE; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s convictions and ordering a new trial, determined that, in response to a Batson inquiry, the prosecutor’s reason for striking the prospective juror did not, in fact, relate to the correct prospective juror. Rather, the prosecutor’s reason related to another prospective juror for whom the defendant had exercised a peremptory challenge: […]

THE SUPPORT MAGISTRATE SHOULD NOT HAVE DEVIATED FROM THE PRESUMPTIVE SUPPORT OBLIGATION CALCULATED PURSUANT TO THE CHILD SUPPORT STANDARDS ACT (CSSA) BASED UPON THE EXPENSES INCURRED BY MOTHER WHEN THE CHILDREN WERE WITH HER; THE EXPENSES DID NOT QUALIFY AS “EXTRAORDINARY EXPENSES” (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the support magistrate should not have deviated from the presumptive support obligation calculated pursuant to the Child Support Standards Act (CSSA): … [T]he Support Magistrate determined that, because the children spent approximately 50% of the parenting time with the mother and because the mother incurred expenses for the […]

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WHERE AN ORDER CONFLICTS WITH A DECISION, THE DECISION CONTROLS (FOURTH DEPT).

The Fourth Department, modifying Supreme Court in this post-judgment matrimonial case, determined the decision controls the discrepancy between the order and the decision: … [B]oth parties expressly agreed in the oral stipulation that plaintiff’s benefits would be distributed “[i]n accordance with the Majauskas formula.” That oral stipulation was an unambiguous expression of the parties’ intent […]

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THE NEGLECT FINDING WAS NOT SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE, CRITERIA EXPLAINED (FOURTH DEPT).

The Fourth Department, reversing Family Court’s neglect finding, determined the finding was not supported by the preponderance of the evidence: “[A] party seeking to establish neglect must show, by a preponderance of the evidence … , first, that a child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming […]

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