The First Department determined the evidence did not support the SORA risk-level assessment of 15 points for drug and alcohol abuse: Defendant admitted to occasional marijuana use, and there is no evidence that he had smoked marijuana at the time of the offense. The only evidence of prior drug treatment was as a condition of […]
The Second Department, reversing defendant’s conviction and dismissing the indictment, determined there was no evidence of forcible compulsion in this Rape First case. The complainant was cajoled by others, not including the defendant, to have sex with the defendant in front of the others. But there was no evidence defendant used force and no overt […]
The Second Department, vacating defendant’s sentence, determined appellate counsel was ineffective and granted a writ of coram nobis. Appellate counsel did not raise the sentencing court’s failure to consider defendant’s eligibility for a youthful offender adjudication. Although the controlling case was decided after the appellate brief was filed, appellate counsel should have amended the brief […]
The Second Department, reversing Supreme Court, determined the defendants’ expert did not sufficiently address the allegations of negligence. Therefore defendant’s motion for summary judgment in this medical malpractice action should have been denied. Plaintiffs alleged defendants did not properly conduct a suicide assessment of plaintiffs’ decedent (Nodor), who committed suicide four weeks after he was […]
The Second Department, reversing Supreme Court, determined the plaintiff bank’s motion to vacate the stipulation terminating the foreclosure action should not have been granted: The Supreme Court improperly granted Deutsche Bank’s motion to vacate the stipulations. The mortgage foreclosure action was terminated by the stipulation of discontinuance with prejudice and Deutsche Bank could only vacate […]
The Second Department, reversing (modifying) Supreme Court, determined the products liability and breach of warranty causes action alleging decedent’s death was caused by an implanted medical device which assisted the heart were preempted by the Federal Food, Drug, and Cosmetic Act as amended by the Medical Device Amendments of 1976 (MDA). But the causes of […]
The Second Department, reversing Supreme Court in this foreclosure action, determined the bank’s proof that the RPAPL 1304 notice was properly mialed to the defendant was insufficient: … [A]lthough Gonzales [an employee of plaintiff Wilmington’s loan servicer] stated in her affidavit that RPAPL 1304 notices were mailed by certified and first-class mail, and attached copies […]
The Second Department, reversing defendant’s conviction and ordering a new trial, determined the challenge to a juror who said he would favor the police testimony should have been granted: … [D]uring voir dire, one prospective juror, a firefighter who worked in the neighborhood where the offenses occurred, told the Supreme Court that he “personally see[s] […]
The Second Department, remitting the matter to give the defendant the opportunity to move to vacate his guilty plea on the ground he was not aware of the possibility of deportation. The court explained the relevant exception to the preservation requirement: “Generally, in order to preserve a claim that a guilty plea is invalid, a […]
The First Department, in a full-fledged opinion by Justice Gische, determined the planned reconstruction of the East River Park along the waterfront of the lower east side of Manhattan did not require approval by the state legislature pursuant to the public trust doctrine, even though the project benefitted the park and other community objectives (protection […]
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