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Entries by Bruce Freeman

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UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE, AN OBJECTION WAS NECESSARY TO PRESERVE THE ERROR RELATED TO DEFENDANT’S ABSENCE FROM A SIDEBAR CONFERENCE ABOUT A PROSPECTIVE JUROR; DEFENDANT SUBSEQUENTLY WAIVED HIS RIGHT TO BE PRESENT AND WAS GIVEN THE OPPORTUNITY TO OBJECT TO HIS ABSENCE FROM THE PRE-WAIVER SIDEBAR (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a three-judge dissent, determined the defendant’s absence from a sidebar conference regarding a prospective juror did not require reversal. Subsequent to the the sidebar, defendant waived his right to be present at sidebar conferences and was given the opportunity to object to the […]

CLAIMANT WAS LAID OFF AFTER 15 YEARS BUT CONTINUED TO DO SIMILAR WORK FOR THE EMPLOYER; AFTER HE WAS LAID OFF HE WAS NO LONGER AN EMPLOYEE AND THEREFORE WAS NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined a photograph researcher who continued to work for a a publisher, Rosen Publishing, after he was laid off after 15 years, was not an employee and therefore was not entitled to unemployment insurance benefits: … [W]e conclude that … the Board’s finding of an employer-employee […]

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SEXUAL BEHAVIOR IN FRONT OF THE CHILD AND SHOWING PORNOGRAPHY TO THE CHILD CONSTITUTED NEGLECT (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined the dismissal of the sexual-behavior-related neglect allegations was error. The petition alleged masturbation in front of the child, having sex in front of the child, and showing pornography to the child. The 3rd Department concluded the allegations were sufficiently supported by the evidence. Matter of Chloe L. (Samantha […]

CLAIMANT ACTOR WAS NOT AN EMPLOYEE OF THE SCHOOL OF VISUAL ARTS AND THEREFORE WAS NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).

The Third Department, reversing the Unemployment Insurance Appeal Board, determined claimant actor was not an employee of the School of Visual Arts (SVA). Claimant was paid $10 an hour for a couple of acting jobs at SVA: Claimant, a professional actor who maintained his own website and IMDb listing to showcase his acting experience and […]

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THE ARRESTING DETECTIVE SHOULD NOT HAVE BEEN ALLOWED TO IDENTIFY THE PERSON DEPICTED IN SURVEILLANCE VIDEOS AS THE DEFENDANT, NEW TRIAL ORDERED (FIRST DEPT).

The First Department, reversing defendant’s conviction and ordering a new trial, determined the arresting detective should not have been allowed to identify the person depicted in two surveillance videos as the defendant: The court should not have permitted the arresting detective to give lay opinion testimony that defendant was the person depicted in two surveillance […]

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WHEN CONFRONTED WITH AN ARMED SUSPECT, DEFENDANT POLICE OFFICER FIRED HER WEAPON AND STRUCK PLAINTIFF, ANOTHER POLICE OFFICER; THE TWO POLICE OFFICERS, WHO WORKED FOR DIFFERENT MUNICIPALITIES, WERE DEEMED CO-EMPLOYEES PURSUANT TO A POLICE MUTUAL AID AGREEMENT; THEREFORE PLAINTIFF’S NEGLIGENCE ACTION WAS PRECLUDED BY GENERAL OBLIGATONS LAW 11-106 (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined that plaintiff police officer and defendant police were co-employees pursuant a Police Mutual Aid Agreement between two municipalities, the Town of Glenville and the Village of Scotia. Plaintiff, a Glenville police officer, alleged defendant , a Scotia police officer, was negligent in firing her weapon at a […]

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ALTHOUGH THE DETERMINATION THE INMATE CURSED AT AND THREATENED A CORRECTION OFFICER WAS CONFIRMED, THE CONCURRENCE NOTED THE OFFICER WAS NOT WEARING A BODY CAMERA, DESPITE THE PILOT PROGRAM IMPLEMENTED IN 2018 (THIRD DEPT).

The Third Department confirmed the finding that petitioner cursed at and threatened a correction officer. The concurrence noted that a body camera would have would provided crucial evidence in a case like this: Although we can accept the explanation here that the correction officer had not been assigned a body camera on the day of […]

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FAMILY COURT SHOULD HAVE HELD A HEARING TO DETERMINE WHETHER THE CHILDREN SHOULD RECEIVE COVID VACCINATIONS; THE CHILDREN AND THEIR FATHER ALLEGEDLY WANTED THE VACCINE, MOTHER OBJECTED (THIRD DEPT).

The Third Department, reversing Family Court, determined a hearing was required before allowing the children to be vaccinated against COVID. The attorney for the children (AFC) and father, reflecting the wishes of the children, asked for court-approval for vaccination. Mother objected to vaccinating the children: Family Court gave the parties notice that it was considering […]

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GUIDELINES FOR FUTURE CHILD VICTIMS ACT COMPLAINTS WHERE DEFENDANT MOVES TO STRIKE “SCANDALOUS OR PREJUDICIAL MATTER” (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Dillon, laid out guidelines for future pleadings in Child Victims Act (CVA) complaints alleging sexual abuse. The question before the court was how the statute allowing the striking of “scandalous and prejudicial matter” (CPLR 3024(b)) should be applied to CVA complaints. The court ultimately only struck […]

THE DEFENSE FOR CAUSE CHALLENGE TO A JUROR WHO SAID SHE WOULD EXPECT THAT THE DEFENSE WOULD PRESENT EVIDENCE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the defense for cause challenge to a juror should have been granted: “[A] prospective juror whose statements raise a serious doubt regarding the ability to be impartial must be excused unless the juror states unequivocally on the record that he or she can be fair and impartial” … . Here, […]

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