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Entries by Bruce Freeman

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IN THIS STREET STOP CASE, SOME OF THE POLICE OFFICERS’ TESTIMONY WAS REJECTED AS INCREDIBLE; THE PEOPLE DID NOT DEMONSTRATE THE LEVEL THREE ENCOUNTER WAS JUSTIFIED BY REASONABLE SUSPICION (SECOND DEPT).

The Second Department, dismissing the indictment, determined the People did not demonstrate the level three encounter with the defendant in the street stop was justified by reasonable suspicion. Some of the police officers’ testimony was rejected as incredible: Officer Washington’s pursuit of the defendant and her attempt to grab him with her right hand were […]

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INDICTMENTS IN TWO COUNTIES RELATED TO THE SAME CONTINUOUS CONDUCT AND THE SAME VICTIM; DEFENDANT’S CONVICTION BY GUILTY PLEA IN NASSAU COUNTY AFTER A GUILTY PLEA IN SUFFOLK COUNTY VIOLATED THE DOUBLE JEOPARDY CLAUSE (SECOND DEPT).

The Second Department, on double-jeopardy grounds, reversed defendant’s conviction by guilty plea in Nassau County because he had already pled guilty to the same conduct in Suffolk County: The charges in Suffolk County and Nassau County related to the same alleged victim. The Suffolk County indictment alleged that the defendant committed acts constituting course of […]

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STATEMENTS MADE BY THE COMPLAINANT TO POLICE OFFICERS HOURS AFTER THE ALLEGED INCIDENT SHOULD NOT HAVE BEEN ADMITTED AS EXCITED UTTERANCES (SECOND DEPT).

The Second Department, reversing defendant assault and criminal possession of a weapon convictions, determined the complainant’s hearsay statement should not have been admitted as excited utterances: … [T]he Supreme Court erred in permitting the People to elicit testimony from two police officers on the content of certain hearsay statements made to them by the complainant […]

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THE EVIDENCE OF “PHYSICAL INJURY” WAS LEGALLY INSUFFICIENT, ASSAULT 2ND CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s Assault 2nd conviction, determined the evidence of “physical injury” was legally insufficient: … [T]he evidence, when viewed in the light most favorable to the prosecution … , was legally insufficient to establish, beyond a reasonable doubt, that the complainant sustained a physical injury within the meaning of Penal Law § […]

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THE JUDGE SHOULD NOT HAVE DELEGATED THE AUTHORITY TO DETERMINE FATHER’S PARENTAL ACCESS TO THE PETITIONER, THE DECEASED MOTHER’S COUSIN, IN THIS GUARDIANSHIP CASE (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, noted that a judge cannot delegate the authority to determine father’s parental access, here the mother’s cousin petitioned to become the child’s guardian: … “[A] court may not delegate its authority to determine parental access to either a parent or a child” … . In this case, the […]

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THE SEPARATION AGREEMENT WAS NOT UNCONSCIONABLE, BUT THERE WAS A QUESTION WHETHER THE AGREEMENT WAS THE PRODUCT OF OVERREACHING, HEARING ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although the separation agreement was not unconscionable, there were questions of fact whether the agreement was the product of overreaching requiring a hearing: While the defendant waived the right to maintenance, this provision, by itself, is insufficient to render the agreement unconscionable … . Nevertheless, the Supreme […]

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THE SENTENCING JUDGE’S REMARKS ABOUT THE DEFENDANT MIMICKED 19TH CENTURY POLYGENISM, A DEBUNKED RACIST IDEOLOGY; SENTENCE VACATED AND REDUCED (THIRD DEPT).

The Third Department, vacating defendant’s sentence, in a full-fledged opinion by Justice Lynch, determined the judge’s racist remarks at the time of sentencing required vacation of the sentence, which the Third Department reduced from 15-years-to-life to five years: The court, practically right out of the gate, stated, “[Defendant], I feel sorry for you. Because I […]

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THE RES IPSA LOQUITUR DOCTRINE APPLIED TO A PLASTIC CHAIR IN THE RECREATIONAL ROOM OF DEFENDANT CORRECTIONAL FACILITY; THE CHAIR COLLAPSED WHILE CLAIMANT WAS SITTING IN IT; THE ISSUE WAS WHETHER DEFENDANT HAD EXCLUSIVE CONTROL OVER THE CHAIR; COURT OF CLAIMS REVERSED (THIRD DEPT). ​

The Third Department, reversing the Court of Claims, determined the doctrine of res ipsa loquitur applied to a plastic chair in the recreational room of a state correctional facility. Claimant alleged the back legs of the chair broke off at the same time causing him to fall to the concrete floor: … [T]he evidence of […]

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FAMILY COURT SHOULD NOT HAVE DELEGATED TO FATHER ITS AUTHORITY TO SUPERVISE MOTHER’S PARENTING TIME AND TELEPHONE AND ELECTRONIC CONTACT WITH THE CHILDREN (THIRD DEPT). ​

The Third Department determined Family Court should not have delegated to father its authority to supervise mother’s parenting time and telephone and electronic contact: Family Court improperly delegated its authority over the mother’s supervised parenting time and telephone and electronic contact with the children to the father. “Unless [parenting time] is inimical to the children’s […]

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