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Entries by Bruce Freeman

THE BATSON CHALLENGE TO THE PROSECUTOR’S EXCLUSION OF A JUROR SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, reversing defendant’s conviction and ordering a new trial, determined defendant’s Batson challenge to the prosecutor’s exclusion of a juror should have been granted: When providing a race-neutral reason for exercising a peremptory challenge as to S.K., the prosecutor stated that S.K. “is a school counselor and . . . when talking about […]

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ALTHOUGH PLAINTIFF’S HOSTILE WORK ENVIRONMENT ALLEGATIONS DID NOT STATE A CAUSE OF ACTION UNDER THE APPLICABLE NEW YORK STATE HUMAN RIGHTS LAW PROVISIONS, THE ALLEGATIONS DID STATE A CAUSE OF ACTION UNDER THE MORE PROTECTIVE NEW YORK CITY HUMAN RIGHTS LAW (CT APP).

The First Department, reversing (modifying) Supreme Court, determined the complaint stated a hostile work environment cause of action under the more protective New York City Human Rights Law, but not under the New York State Human Rights Law: … [A]lthough the motion court properly concluded that it does not rise to the level of “severe […]

WORKERS’ COMPENSATION DEATH BENEFIT CLAIMS CANNOT BE TRANSFERRED TO THE SPECIAL FUND ON OR AFTER JANUARY 1, 2014, EVEN IF THE DISABILITY CLAIM FOR THE SAME INJURY HAD BEEN TRANSFERRED BEFORE THE CUT-OFF (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, over a two-judge dissent, determined Workers’ Compensation death benefit claims which accrued on orf after January 1, 2014, cannot be transferred to the Special Fund for Reopened Cases (Special Fund) even if the disability claim for the same injury had […]

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IF QUESTIONING A DEFENDANT ABOUT WHERE HE/SHE LIVES SERVES AN ADMINISTRATIVE PURPOSE AND IS NOT A DISGUISED ATTEMPT TO OBTAIN INCRIMINATING INFORMATION, DEFENDANT’S ANSWER IS SUBJECT TO THE PEDIGREE EXCEPTION TO THE MIRANDA REQUIREMENT; DNA EVIDENCE GATHERED BY THE FORENSIC STATISTICAL TOOL (FST) SHOULD NOT HAVE BEEN ADMITTED WITHOUT HOLDING A FRYE HEARING (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, over a two-judge dissent, determined: (1) under the facts, the defendant’s answer to the police officer’s question regarding where he lived fell within the “pedigree exception” to the Miranda requirement (and therefore was not suppressible); and (2), the DNA evidence […]

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DEFENDANT’S CHALLENGE TO CERTIFICATION AS A SEX OFFENDER WAS FIRST RAISED IN THE APPELLATE DIVISION AND WAS NOT PRESERVED FOR CONSIDERATION BY THE COURT OF APPEALS; THE ILLEGAL SENTENCE EXCEPTION TO THE PRESERVATION REQUIREMENT DOES NOT APPLY BECAUSE SORA CERTIFICATION IS NOT PART OF THE SENTENCE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Cannataro, over a two-judge dissent, determined the challenge to the legality of defendant’s certification as a sex offender, first raised on appeal to the Appellate Division, was not preserved and the illegal sentence exception to the preservation requirement did not apply: […]

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THE $140 MILLION PAID BY BEAR STEARNS TO THE SEC TO SETTLE AN ACTION ALLEGING THE FACILITATION OF LATE TRADING WAS NOT A “PENALTY IMPOSED BY LAW” AND THEREFORE WAS A COVERED LOSS UNDER THE TERMS OF THE INSURANCE POLICIES (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge DiFiore, over an extensive dissent, determined the funds paid to the Security and Exchange Commission (SEC) to settle an action alleging Bear Stearns “facilitated late trading” and “deceptive market timing activity” did not constitute a “penalty imposed by law” and therefore […]

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THE OUT-OF-POSSESSION LANDLORD IN THIS SLIP AND FALL CASE DEMONSTRATED (1) THE LEASE DID NOT REQUIRE IT TO MAINTAIN A DRAIN WHICH PERIODICALLY BECAME CLOGGED CAUSING GARBAGE TO FLOAT TO THE SIDEWALK, AND (2) IT DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE PRESENCE OF THE GARBAGE ON THE SIDEWALK WHICH ALLEGEDLY CAUSED PLAINTIFF’S SLIP AND FALL (FIRST DEPT). ​

The First Department, reversing (modifying) Supreme Court, determined the out-of-possession landlord, SMHS, was not responsible for the fish skin on the sidewalk which allegedly caused plaintiff to slip and fall. The tenant, Lobster, a wholesale seafood company, had contracted with defendant Sanitation to remove garbage, including fish parts, from the tenant’s premises. There was a […]

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A SUBPOENA ISSUED BY AN ATTORNEY IS A “JUDICIAL” SUBPOENA SUBJECT TO A CONTEMPT PROCEEDING WITHOUT THE NEED TO FIRST SEEK A COURT ORDER COMPELLING COMPLIANCE (FIRST DEPT).

The First Department, reversing Supreme Court, determined a subpoena issued by an attorney was a “judicial” subpoena and defendant Patterson’s failure to appear for a deposition and produce documents was punishable by contempt without the need to first obtain a court order compelling compliance: Critical to the resolution of this appeal is whether this type […]

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DEFENDANT HAD BEEN TAKEN DOWN TO THE GROUND AND HANDCUFFED AT THE TIME THE BACKPACK HE WAS WEARING WAS SEARCHED; THE PEOPLE PRESENTED NO EVIDENCE OF EXIGENCY; THE SEARCH WAS THEREFORE UNJUSTIFIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the People did not demonstrate exigent circumstances which justified the search of the backpack he was wearing. The defendant had been taken down to the ground and handcuffed at the time of the search: At the suppression hearing, when questioned as to why he patted down defendant and […]

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THE REMARKS MADE BY THE POLICE DURING THE INTERROGATION OF DEFENDANT SERVED TO NEGATE THE MIRANDA WARNINGS; INTERROGATION CONTINUED AFTER DEFENDANT ASSERTED HIS RIGHT TO COUNSEL; THE ERRORS WERE DEEMED HARMLESS BECAUSE DEFENDANT WOULD HAVE BEEN CONVICTED EVEN IF THE STATEMENTS HAD BEEN SUPPRESSED (FOURTH DEPT).

The Fourth Department determined questioning by the police effectively negated the Miranda warnings and questioning continued after defendant invoked his right to counsel. The errors were deemed harmless because the defendant would have been convicted even if the statements had been suppressed: “Properly administered Miranda rights can be rendered inadequate and ineffective when they are […]

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