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THE SEXUAL ASSAULT REFORM ACT (SARA), WHICH PLACES RESTRICTIONS ON WHERE SEX OFFENDERS CAN RESIDE AFTER RELEASE FROM PRISON, DOES NOT VIOLATE THE EX POST FACTO CLAUSE OF THE US CONSTITUTION (THIRD DEPT).

The Third Department, reversing Supreme Court and agreeing with the First and Second Departments, determined the Sexual Assault Reform Act (SARA), which prohibits petitioner-sex-offender from residing within 1000 feet of school grounds, did not violate the Ex Post Facto clause of the US Constitution: Because petitioner was unable to locate housing in New York City […]

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TESTIMONY THAT THE FREQUENCY OF SEXUAL RELATIONS BETWEEN DEFENDANT AND HIS WIFE DROPPED OFF PRECIPITOUSLY AT ABOUT THE TIME THE CHILD ALLEGED THE SEXUAL ABUSE BEGAN SHOULD NOT HAVE BEEN ADMITTED BECAUSE IT ALLOWED THE JURY TO SPECULATE ABOUT THE REASON FOR THE DROP-OFF; SEXUAL ASSAULT OF A CHILD AND RAPE CONVICTIONS REVERSED AND NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant predatory-sexual-assault-against-a-child and rape convictions and ordering a new trial, determined it was error to allow defendant’s wife to testify that the frequency of their sexual relations dropped off precipitously at about the time the child-victim began to be abused. The testimony was erroneously deemed to constitute circumstantial evidence of the […]

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THE ELICITATION OF TESTIMONY FROM A DETECTIVE THAT DEFENDANT INVOKED HIS RIGHT TO COUNSEL AND HIS RIGHT AGAINST SELF-INCRIMINATION WAS SUBJECT TO A HARMLESS ERROR ANALYSIS AND DID NOT REQUIRE REVERSAL; THE DISSENT ARGUED THE ABSENCE OF A CURATIVE INSTRUCTION RENDERED THE ERROR REVERSIBLE (THIRD DEPT).

The Third Department determined the People’s improper elicitation of a detective’s testimony that defendant invoked his right to counsel and his right against self-incrimination was subject to a harmless error analysis and did not require reversal. The dissent disagreed: A defendant’s invocation of his or her right against self-incrimination and/or his or her right to […]

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PETITIONER ALLEGED HIS ARREST WARRANT WAS BASED UPON FALSE ATTESTATIONS AND SOUGHT TO FILE A LATE NOTICE OF CLAIM ALLEGING FALSE ARREST, FALSE IMPRISONMENT AND MALICIOUS PROSECUTION; THE CITY WAS DEEMED TO HAVE HAD TIMELY NOTICE OF THE ACTION BY VIRTUE OF THE CITY-PERSONNEL’S INVOLVEMENT IN DRAFTING THE WARRANT AND SUBSEQUENT REPORTS; THE REQUEST TO FILE A LATE NOTICE WAS PROPERLY GRANTED (FIRST DEPT). ​

The First Department, over a dissent, determined the petition seeking leave to file a late notice of claim against the respondent City of New York in this false arrest, false imprisonment and malicious prosecution action was properly granted. The main issue was whether the city had timely notice of the claim, and therefore was not […]

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DESPITE DEFENSE COUNSEL’S ADMISSION BEFORE THE MOTION COURT THAT HE DID NOT PROPERLY INVESTIGATE THIS MURDER CASE, DEFENDANT DID NOT DEMONSTRATE THAT COUNSEL WAS INEFFECTIVE OR THAT THE ALLEGED INEFFECTIVENESS MET THE CRITERIA FOR A CONFLICT OF INTEREST (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Moulton, determined defendant did not demonstrate his attorney provided ineffective assistance, despite the attorney’s statements to the trial court acknowledging his failure to timely investigate the case, which led to his request to file a late alibi notice (the request was granted). The defendant told the […]

AFTER PLEADING GUILTY IN FULL SATISFACTION OF THE CHARGES IN THE INDICTMENT, A SECOND PLEA TO ANOTHER COUNT OF THE INDICTMENT WAS PRECLUDED (FIRST DEPT).

The First Department, vacating defendant’s conviction by guilty plea and dismissing the relevant count, determined initial pleas in full satisfaction of the charges in the indictment precluded a second plea to another count in the indictment: As the People concede, defendant’s first plea, to one count of third-degree sale of a controlled substance, was in […]

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A JUDGMENT DEBTOR CANNOT BRING AN ACTION IN TORT AGAINST THE CREDITOR OR THE MARSHAL ALLEGING DAMAGES STEMMING FROM THE SEIZURE OF PROPERTY TO BE APPLIED TO THE DEBT; THE JUDGMENT DEBTOR’S REMEDIES ARE CONFINED TO THOSE DESCRIBED IN CPLR 5239 AND 5240 (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two-judge dissent, and an additional single-judge dissent, determined a judgment debtor cannot bring a action in tort against the creditor or the marshal stemming from the seizure of the judgment debtor’s property. Any such claim must be made pursuant to CPLR 5239, […]

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CASE 1: THE ACKNOWLEDGMENT OF SIGNATURES ON A NUPTIAL AGREEMENT MUST BE CONTEMPORANEOUS, BUT NOT NECESSARILY SIMULTANEOUS, WITH THE SIGNING; HERE A SEVEN-YEAR DELAY WAS TOO LONG; CASE 2: A DEFECT IN THE ACKNOWLEDGMENTS, HERE THE LAWYERS’ FAILURE TO STATE THE SIGNERS WERE PERSONALLY KNOWN TO THEM, DID NOT INVALIDATE THE AGREEEMENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined: (1) Pursuant to Domestic Relations Law (DRL) 236 (B) (3), the acknowledgment of signatures on a nuptial agreement must be contemporaneous, but not necessarily simultaneous, with the signing: and (2) if the signing is contemporaneous, but the acknowledgment is defective, the nuptial agreement […]

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THE SEX TRAFFICKING STATUTE HAS TWO LINKED BUT DISTINCT ELEMENTS WHICH WERE PROPERLY EXPLAINED TO THE JURY IN THE INITIAL JURY INSTRUCTIONS; HOWEVER THE SUPPLEMENTAL INSTRUCTION IN RESPONSE TO A JURY NOTE ERRONEOUSLY COLLAPSED THE STATUTE TO A SINGLE ELEMENT; NEW TRIAL ORDERED ON THE SEX TRAFFICKING COUNTS (CT APP).

The Court of Appeals, in a brief memorandum, vacating the sex trafficking convictions and ordering a new trial, over two lengthy concurrences and a dissent, determined the supplemental jury instruction failed to explain to the jury that the sex trafficking statute has two linked but distinct elements which must be proven to convict. The positions […]

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THIS ACTION INVOLVED THE NAZIS’ CONFISCATION OF A DEGAS PAINTING OWNED BY A GERMAN CITIZEN WHO SUBSEQUENTLY MOVED TO SWITZERLAND AND THEN FRANCE; SUPREME COURT DID NOT ABUSE ITS DISCRETION IN DISMISSING THE ACTION ON FORUM NON CONVENIENS GROUNDS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a dissent, determined the action involving a Degas painting confiscated by the Nazis from a German citizen, who then moved to Switzerland and France, was properly dismissed on forum non coveniens grounds. The dismissal presented a matter requiring the exercise of discretion by […]

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