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Entries by Bruce Freeman

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THE MAJORITY APPLIED THE DISCOVERY STATUTE IN EFFECT AT THE TIME THE ORDER TO TURN OVER THE ROSARIO MATERIAL ONE WEEK BEFORE TRIAL WAS MADE, FINDING THE ORDER PROPER; THE CONCURRENCE AGREED BUT ARGUED THE COURT SHOULD EXPLICITLY RULE THAT THE DISCOVERY STATUTE ENACTED IN 2019 SHOULD ALWAYS BE APPLIED PROSPECTIVELY (FOURTH DEPT).

The Fourth Department, over a concurrence, affirmed defendant’s conviction. One of the issues in the appeal was whether it was appropriate for the court to order the prosecution to turn over Rosario material one week before trial. The majority ruled the order was proper under the former law, CPL former 240.45. The concurrence agreed but […]

COUNTY COURT SHOULD HAVE DETERMINED WHETHER DEFENDANT WAS A SECOND VIOLENT FELONY OFFENDER BEFORE SENTENCING HIM AS A SECOND FELONY OFFENDER, MATTER REMITTED (FOURTH DEPT).

The Fourth Department determined County Court was obligated to determine whether defendant was a second violent felony offender before sentencing defendant as a second felony offender: Where it is apparent at the time of sentencing that a defendant may be a second violent felony offender, the People are required to file a second violent felony […]

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A SCHOOL FACULTY MEMBER WHO YELLED “BE QUIET” INTO A MICROPHONE, THE LOUDNESS OF WHICH WAS ALLEGED TO HAVE INJURED PLAINTIFF’S CHILD, DID NOT BREACH A DUTY OWED TO THE STUDENT; THE SCHOOL DISTRICT’S MOTION FOR A DIRECTED VERDICT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant school district was entitled to a directed verdict in this action which alleged plaintiff’s daughter was injured when a faculty member used a microphone to tell the students to be quiet. It was alleged loudness of the command caused injury: In order to prevail on a negligence […]

DEFENDANT MADE A VALID REQUEST TO APPEAR IN THE GRAND JURY BEFORE THE AMENDED INDICTMENT WAS FILED; THE FACT THAT DEFENDANT HAD PREVIOUSLY DECLINED THE OPPORTUNITY TO TESTIFY WAS OF NO SIGNIFICANCE (FOURTH DEPT). ​

The Fourth Department, dismissing the indictment, determined defendant should have been allowed to testify before the grand jury: CPL 190.50 (5) (a) provides that a defendant’s request to testify is timely as long as it is made prior to the filing of the indictment” … . Here, defendant’s June 8, 2017 notice, which ” ‘satisfied […]

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THE STATE BREACHED ITS DUTY TO PROTECT AN INMATE FROM AN ATTACK BY OTHER INMATES; COURT OF CLAIMS REVERSED OVER A TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing the Court of Claims and granting judgment in favor of the claimant, over a two-justice dissent, determined claimant, an inmate, demonstrated the state was negligent in failing to protect him from an attack by other inmates: … [C]laimant—who had an unblemished disciplinary record—cooperated with an investigation by the Department of Corrections […]

DEFENDANT’S FOR CAUSE JUROR CHALLENGE SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined defendant’s for cause challenge to a juror should have been granted: … [T]he prospective juror in question himself expressed “doubt [as to his] own ability to be impartial in the case at hand” … when he stated during voir dire that he was “not sure” whether he could […]

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NO NOTICE OF CLAIM WAS REQUIRED IN THIS NUISANCE, TRESPASS AND INVERSE TAKING ACTION AGAINST A VILLAGE BECAUSE MONEY DAMAGES WERE INCIDENTAL TO THE DEMAND FOR INJUNCTIVE RELIEF (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined a General Municipal Law notice of claim was not required in this action for nuisance, trespass, inverse taking and injunctive relief against a village. The village had installed drainage pipes in the roadway near plaintiff’s property and then repaved the road. Plaintiff alleged water runoff from the roadway […]

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PLAINTIFFS RAISED A QUESTION OF FACT WHETHER THE CONTINUOUS REPRESENTATION DOCTRINE RENDERED THE LEGAL MALPRACTICE ACTION TIMELY; REFERENCE TO THE “ENFORCEMENT” OF THE LOAN DOCUMENTS INDICATED THE POSSIBILITY OF REPRESENTATION AFTER THE DATE OF THE LOAN TRANSACTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiffs raised a question of fact whether the continuous representation doctrine rendered the legal malpractice action timely: The continuous representation doctrine tolls the limitations period “where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” … , […]

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THE SENTENCING JUDGE DID NOT HAVE THE AUTHORITY TO DIRECT THAT THE SENTENCE RUN CONSECUTIVELY WITH A SENTENCE WHICH HAD NOT YET BEEN IMPOSED BY A DIFFERENT COURT; THE APPROPRIATE APPELLATE REMEDY IS TO STRIKE THE DIRECTIVE (FOURTH DEPT).

The Fourth Department, reversing (modifying) County Court, In a full-fledged opinion by Justice NeMoyer, determined the sentencing court did not have the authority to order the sentence to run consecutively with a sentence that had not yet been imposed by a different court. The appropriate appellate remedy is to strike the directive, rather than send […]

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THE MAYOR’S STATEMENTS WERE TRUE AND DID NOT EVINCE MALICE; PLAINTIFF’S TORTIOUS INTERFERENCE WITH CONTRACT ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s tortious interference with contract cause of action should have been dismissed. Plaintiff, was the head of a charter school, The mayor of Rochester (Warren) criticized the school for refusing to allow the school’s first African American valedictorian to give a speech at graduation: To establish a tortious […]

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