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DEFENDANT WAS DENIED HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM BY A DETECTIVE’S TESTIM0NY ABOUT THE SUBSTANCE OF A STATEMENT ALLEGEDLY MADE BY A NONTESTYING ACCOMPLICE; THE ERROR WAS PRESERVED FOR APPEAL BY THE DEFENDANT HIMSELF, NOT DEFENSE COUNSEL, CITING CRAWFORD V WASHINGTON (SECOND DEPT),

The Second Department, reversing the murder conviction and ordering a new trial, in a full-fledged opinion by Justice Chambers, determined a detective’s testimony about what a nontestifying accomplice (Andy Dabydeen) said violated defendant’s right to confront the witnesses against him. Although defense counsel did not object to the detective’s testimony, the defendant himself objected after […]

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THE ISSUE WHETHER THE STATUTORY REQUIREMENT THAT OBJECTIONS TO CHILD SUPPORT ORDERS BE RULED ON WITHIN 15 DAYS WAS CONSIDERED ON APPEAL AS AN EXCEPTION TO THE MOOTNESS DOCTRINE; THE 15-DAY RULE IS MANDATORY AND MUST BE ENFORCED; THE MOTHER WAS ENTITLED TO ATTORNEY’S FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT BECAUSE HER ACTION WAS THE CATALYST FOR THIS DECISION (FIRST DEPT).

The First Department, reversing Family Court, in a full-fledged opinion by Justice Mazzarelli, determined: (1) the issue whether objections to child support rulings must be ruled on within 15 days (Family Court Act 439(a)) will be considered on appeal as an exception to the mootness doctrine; (2) under the Equal Access to Justice Act (EAJA) […]

THE FEDERAL DRUG CONVICTION WAS NOT THE EQUIVALENT OF A VIOLATION OF PENAL LAW 220.39 FOR SECOND-FELONY-OFFENDER PURPOSES; IT IS NOT CLEAR WHETHER THIS DECISION OVERRULED FIRST DEPARTMENT PRECEDENT, OR WHETHER A REVIEW OF THE FEDERAL ACCUSATORY INSTRUMENT WOULD HAVE DEMONSTRATED THE TWO OFFENSES WERE EQUIVALENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the federal drug conviction was not the equivalent of a violation of Penal Law 220.39, Therefore the federal conviction could not be the basis for second felony offender status. It is not clear whether this decision overruled other First Department decisions to the contrary, or whether a review […]

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THE EMAIL EXCHANGE BETWEEN THE ATTORNEYS IN THIS PERSONAL INJURY ACTION CONSTITUTED AN ENFORCEABLE SETTLEMENT WHICH WAS UNAFFECTED BY THE SUBSEQUENT GRANTING OF DEFENDANTS’ SUMMARY JUDGMENT MOTION (SECOND DEPT).

The First Department, reversing Supreme Court, determined the email exchange between attorneys constituted an enforceable settlement of the personal injury action which was unaffected by the subsequent granting of summary judgment to the defendants: The settlement agreement was stated in an email communication in which plaintiffs’ counsel stated, “This is to confirm settlement in the […]

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THE PLEA AGREEMENT COULD NOT BE FULFILLED BECAUSE THE DEFENDANT WAS NOT ELIGIBLE FOR THE PROMISED SHOCK INCARCERATION PROGRAM; DEFENDANT’S GUILTY PLEA WAS THEREFORE NOT VOLUNTARY; ALTHOUGH THE ISSUE WAS NOT PRESERVED BY A MOTION, THE MATTER WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea, determined the plea was invalid because the plea agreement could not be fulfilled. Defendant was promised participation in the shock incarceration program, but a prior violent felony conviction rendered him ineligible. The court noted that the argument the plea was not voluntary (because the promise could […]

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DEFENSE COUNSEL SUBMITTED EVIDENCE IN SUPPORT OF A DOWNWARD DEPARTURE FROM THE PRESUMPTIVE RISK LEVEL BUT COUNTY COURT DID NOT RULE ON IT; MATTER REMITTED FOR FINDINGS OF FACT AND CONCLUSIONS (THIRD DEPT).

The Third Department, remitting the matter, noted that defense counsel submitted evidence in support of a downward departure from the presumptive risk level but County Court made no findings on the request: The record reflects that defendant’s counsel submitted various evidence, including a letter from a social worker who apparently was treating defendant and information […]

THE RECORD DOES NOT DEMONSTRATE THE HEARING OFFICER MADE REASONABLE EFFORTS TO SECURE THE TESTIMONY OF AN EYEWITNESS TO THE FIGHT WHICH RESULTED IN THE MISBEHAVIOR REPORT CHARGING THE PETITIONER; NEW HEARING ORDERED (THIRD DEPT).

The Third Department, annulling the determination and ordering a new hearing, determined the hearing officer did not make reasonable efforts to have a witness to the fight, Johnson, testify at petitioner’s misbehavior hearing. Petitioner requested the witness’s testimony as part of his defense: The record reflects that, although Johnson agreed to testify at the hearing, […]

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THE WORKERS’ COMPENSATION BOARD ABUSED ITS DISCRETION BY IGNORING UNCONTRADICTED EVIDENCE OF THE EXTENT OF CLAIMANT’S IMPAIRMENT (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined the uncontested evidence demonstrated claimant’s shoulder was 35% impaired, not 15% impaired as found by the Board: Whether to grant an application for reopening or rehearing in the interest of justice is a matter left to the Board’s discretion and our review of that decision is […]

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DEFENDANT WAS NOT SHOWN TO BE NEGLIGENT OR TO HAVE EXERCISED SUPERVISION AND CONTROL OVER THE INJURY-PRODUCING WORK; SCHEDULING AND COORDINATING WORK DOES NOT CONSTITUTE SUPERVISON AND CONTROL; THE COMMON-LAW INDEMNIFICATION AND CONTRIBUTION CLAIMS SHOULD HAVE BEEN DISMISSED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the common-law indemnification action against defendant Ergonomic should have been granted because Ergonomic was not shown to be negligent or to have exercised supervisory control over the injury-producing work. Portions of the floor were removed to access cables. Plaintiff alleged a leg of his ladder went into an […]

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PLAINTIFF-RELATOR BROUGHT A QUI TAM ACTION (ON BEHALF OF THE GOVERNMENT) AGAINST A BANK ALLEGING VIOLATION OF THE STATE FINANCE LAW; THE QUI TAM ACTION WAS DISMISSED FOR FAILURE TO STATE A CLAIM; EVEN THOUGH THE CITY SETTLED WITH THE BANK IN A RELATED ACTION, PLAINTIFF-RELATOR WAS NOT ENTITLED TO A PERCENTAGE OF THE SETTLEMENT (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Singh, determined the plaintiff-relator, who brought a qui tam action against a bank alleging the bank violated the State Finance Law (re: foreign currency exchanges), was not entitled to a percentage of the related settlement reached by the bank and the city. The plaintiff-relator’s qui tam […]

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