You are here: / Bruce Freeman

Entries by Bruce Freeman

, ,

EVEN WHERE DEFENDANT PLED GUILTY AND WAIVED APPEAL WITH THE UNDERSTANDING HE WILL NOT BE AFFORDED YOUTHFUL OFFENDER STATUS A MOTION TO VACATE THE SENTENCE BASED ON THE JUDGE’S FAILURE TO CONSIDER YOUTHFUL OFFENDER STATUS IS AVAILABLE (SECOND DEPT).

The Second Department, reversing Supreme Court and vacating defendant’s sentence, in a full-fledged opinion by Justice Wan, determined the sentencing judge’s failure to consider defendant’s youthful offender status can be raised in a motion to vacate the sentence, despite the failure to appeal the conviction on that ground. Here defendant pled guilty and waived appeal […]

,

IN THIS FORECLOSURE ACTION, THE REFEREE’S AFFIDAVIT DID NOT LAY A PROPER FOUNDATION FOR ALL THE DOCUMENTS RELIED UPON; THEREFORE THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a proper foundation was not laid for the documents supporting the referee’s report: In computing the amount due, the referee relied upon an affidavit of merit from an authorized signer of PNC Bank, National Association (hereinafter PNC). Although the referee stated in his report that PNC was the […]

, , ,

THE ZONING BOARD’S DENIAL OF A STREET FRONTAGE VARIANCE WAS NOT SUPPORTED BY SPECIFIC FACTUAL FINDINGS MAKING COURT-REVIEW IMPOSSIBLE; MATTER REMITTED TO THE BOARD (SECOND DEPT).

The Second Department, reversing Supreme Court and remitting the matter to the town Zoning Board of Appeals, determined the Board must set forth its reasons for denying a variance. Without specific factual support for the denial in the record, court review is impossible: … [T]he Board failed to sufficiently set forth the specific factual support […]

, ,

DEFENDANT DID NOT MAKE AN UNEQUIVOCAL REQUEST TO REPRESENT HIMSELF; THEREFORE THE JUDGE WAS NOT REQUIRED TO CONDUCT A SEARCHING INQUIRY TO DETERMINE WHETHER DEFENDANT’S REQUEST WAS KNOWING, VOLUNTARY AND INTELLIGENT; A TWO-JUSTICE DISSENT DISAGREED (FOURTH DEPT).

The Fourth Department, affirming defendant’s conviction, determined he did not make an unequivocal request to represent himself. The two-justice dissent disagreed: … [D]efendant did not unequivocally request to proceed pro se inasmuch as he only “ask[ed] to proceed pro se as an alternative to receiving new counsel,” thereby seeking to “leverage his right of self-representation […]

, ,

A COURT CANNOT MANDATE A SPECIFIC RELIGIOUS EXERCISE FOR A CHILD (ORDERING THAT A CHILD ATTEND A SPECIFIC CHURCH FOR EXAMPLE); RATHER, THE COURT SHOULD DESIGNATE A PARENT TO HAVE DECISION-MAKING AUTHORITY OVER A CHILD’S RELIGIOUS EDUCATION AND EXCERCISE (FOURTH DEPT).

The Fourth Department, reversing (modifying) Family Court, determined the order that a child “shall attend the Church of Jesus Christ of Latter-Day Saints …” was unconstitutional in that it mandated specific religious exercise: … [T]he court’s order that the parties’ middle child “shall attend the Church of Jesus Christ of Latter-Day Saints every Sunday” except […]

, , , ,

COUNTY COURT VIOLATED DEFENDANT’S RIGHT TO DUE PROCESS OF LAW BY FAILING TO NOTIFY DEFENDANT IT INTENDED TO ASSESS POINTS IN THE SORA RISK-LEVEL HEARING THAT WERE NOT RECOMMENDED BY THE BOARD OR PROPOSED BY THE PEOPLE; NEW HEARING ORDERED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department, reversing County Court and ordering a new SORA risk assessment hearing, determined County Court violated defendant’s right to due process of law by failing to notify defendant it intended to assess points that were not recommended by the Board of Examiners of Sex Offenders or proposed by the People. Although the defendant […]

, , ,

PLAINTIFFS ALLEGED A TEENAGER WHO COMMITTED RACIALLY-MOTIVATED MASS MURDER WAS ADDICTED TO SOCIAL MEDIA CONTENT PRESENTING THE VIEW THAT WHITES ARE BEING REPLACED BY NON-WHITES; PLAINTIFFS ALLEGED THE SOCIAL MEDIA PLATFORMS WERE DEFECTIVELY DESIGNED TO BE ADDICTIVE; OVER A TWO-JUSTICE DISSENT, THE DEFENDANT SOCIAL MEDIA PLATFORMS WERE DEEMED IMMUNE FROM SUIT BASED UPON THIRD-PARTY CONTENT PURSUANT TO SECTION 230 OF THE COMMUNICATIONS DECENCY ACT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, in a full-fledged opinion by Justice Lindley, over a two-justice dissent, determined the actions against social media platforms alleging the platforms are defectively designed to be “addictive” such that a teenager’s addiction to racist content led him to commit a racially-motivated mass shooting, should have been dismissed: These consolidated […]

,

CO-CONSPIRATOR EXCEPTION TO THE HEARSAY RULE EXPLAINED (FOURTH DEPT).

The Fourth Department, affirming the convictions, explained the co-conspirator exception to the hearsay rule. A two-justice partial dissent argued there was insufficient evidence of defendant’s guilt of murder, attempted murder and assault as an accessory: …[T]he court properly admitted in evidence the text messages sent by the female codefendant to defendant’s cell phone pursuant to […]

, ,

THE PROSECUTOR RECOMMENDED A LEVEL ONE RISK ASSESSMENT BUT THE JUDGE ASSESSED ADDITIONAL POINTS AT THE CONCLUSION OF THE HEARING RAISING THE RISK LEVEL TO TWO; BECAUSE DEFENDANT WAS NOT GIVEN THE OPPORTUNITY TO ARGUE FOR A DOWNWARD DEPARTURE, DEFENDANT IS ENTITLED TO A NEW HEARING (FOURTH DEPT).

The Fourth Department, reversing County Court and remitting the matter, determined defendant was not given an adequate opportunity to argue for a downward departure. The prosecutor had requested a level one risk assessment, but the judge assessed additional points and raised the risk level to two at the conclusion of the hearing: Defendant further … […]

, ,

THE MAJORITY DETERMINED THE PEOPLE DID NOT EXERCISE DUE DILIGENCE IN LOCATING REQUESTED DISCOVERY MATERIALS; THE INDICTMENT WAS PROPERLY DISMISSED ON SPEEDY TRIAL GROUNDS; A TWO-JUSTICE DISSENT ARGUED THE TIME WHEN THE OMNIBUS MOTIONS WERE UNDER CONSIDERATION SHOULD NOT HAVE BEEN CHARGED TO THE PEOPLE (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, affirmed the dismissal of the indictment on speedy trial grounds. The dissenting justices agreed that the certificate of compliance was invalid, but argued the time that the defense omnibus motions were under consideration should not have been charged to the People: … [T]he People contend that the court […]

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy