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Entries by Bruce Freeman

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COUNTY COURT DID NOT CONDUCT AN ADEQUATE INQUIRY INTO DEFENDANT’S COMPLAINTS ABOUT DEFENSE COUNSEL, CONVICTION REVERSED; TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, over a two-justice dissent, determined County Court should have conducted a minimal inquiry to address defendant’s complaints about defense counsel. The dissenters argued County Court had, in fact, conducted an adequate inquiry: … [W]e conclude that defendant’s complaints were sufficiently serious to trigger the court’s duty to inquire … […]

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IN THE FACE OF DEFENDANT’S AND DEFENSE COUNSEL’S REQUEST FOR NEW COUNSEL, COUNTY COURT COMMITTED REVERSIBLE ERROR BY DENYING THE REQUEST WITHOUT MAKING A MINIMAL INQUIRY (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the court should have conducted in inquiry to evaluate defendant’s complaints about his attorney and his request for new counsel: … [T]he court committed reversible error by failing to conduct an inquiry following defense counsel’s submission of a letter seeking to be relieved from the case and in […]

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ALTHOUGH THE ERRORS WERE DEEMED HARMLESS, A POLICE OFFICER SHOULD NOT HAVE BEEN ALLOWED TO IDENTIFY DEFENDANT IN A SURVEILLANCE VIDEO AND POLICE OFFICERS SHOULD NOT HAVE BEEN ALLOWED TO PROVIDE HEARSAY EVIDENCE AS MOLINEUX “BACKGROUND INFORMATION” (FOURTH DEPT).

The Fourth Department determined it was error to allow a police officer to identify the defendant in a surveillance video, and it was error to allow police officers to testify about what they learned from others (hearsay) about defendant’s involvement in the shooting. Although the errors were deemed harmless because of the overwhelming evidence, these […]

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WHERE A MOTION TO VACATE A CONVICTION IS BASED UPON EVIDENCE OUTSIDE THE RECORD AND EVIDENCE IN THE RECORD, ALL OF THE EVIDENCE IS ADMISSIBLE IN THE HEARING ON THE MOTION; COUNTY COURT SHOULD NOT HAVE RESTRICTED THE PRESENTATIOIN OF DEFENDANT’S ALLEGATIONS OF INEFFECTIVE ASSISTANCE TO ONLY THOSE WHICH WERE OUTSIDE THE RECORD (FOURTH DEPT).

The Fourth Department, reversing the denial of defendant’s motion to vacate his conviction, determined County Court should not have restricted the hearing to only the allegations of ineffective assistance that could not have been raised on direct appeal. Where a motion to vacate a conviction is based on evidence outside the record, as well as […]

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THE STAIRWAY TO THE ATTIC, WHERE DRUGS WERE FOUND, WAS NOT PART OF THE APARTMENT DESCRIBED IN THE SEARCH WARRANT AND THE PEOPLE DID NOT DEMONSTRATE THE STAIRWAY WAS A COMMON AREA; DEFENDANT’S MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department determined defendant’s motion to suppress evidence found in a stairway leading to the attic should have been granted because the warrant did not authorize the search of that area and the People did not demonstrate the stairway was a common area: … [T]he warrant at issue authorized a search of “865 woodlawn […]

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THE MAJORITY CONCLUDED PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT IN THIS FATAL VEHICLE-PEDESTRIAN ACCIDENT CASE BECAUSE DECEDENT’S ALLEGED CONTRIBUTORY NEGLIGENCE DOES NOT BAR SUMMARY JUDGMENT; THE DISSENT ARGUED THERE WAS A QUESTION OF FACT WHETHER DECEDENT’S NEGLIGENCE WAS THE SOLE PROXIMATE CAUSE OF THE ACCIDENT (FOURTH DEPT).

The Fourth Department, over a dissent, determined plaintiff was entitled to summary judgment in this fatal vehicle-pedestrian accident case. The majority held that any negligence on the part of plaintiff’s decedent constituted comparative negligence which is no longer a bar to summary judgment. The dissent argued there was a question of fact whether decedent’s actions […]

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SUPREME COURT HAD FOUND COVID-19 RESTRICTIONS ON LIVE MUSIC PERFORMANCE UNCONSTITUTIONAL; THE APPEAL WAS DEEMED MOOT AND THE MERITS WERE NOT REACHED (FOURTH DEPT).

The Fourth Department determined the New York State Liquor Authority’s (SLA’s) appeal of Supreme Court’s ruling that the SLA’s COVID-19 guidance imposed upon a tavern (Sportsmen’s) were unconstitutional was moot. Neither party had argued the appeal should be dismissed as moot: [SLA’s] guidance, which Sportsmen’s was required to abide by pursuant to certain executive orders, […]

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THE AMBIGUITY IN THE HOME INSURANCE POLICY WAS NOT CLEARED UP BY EXTRINSIC EVIDENCE AND MUST BE RESOLVED AGAINST THE INSURER; THE INSURER SHOULD NOT HAVE DISCLAIMED COVERAGE FOR WATER DAMAGE CAUSED BY FROZEN PIPES (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the insurer should not have disclaimed coverage for water damage caused by frozen pipes in plaintiffs’ seasonal home. The case turned on the whether the plaintiffs took “reasonable care” (within the meaning of the policy) to maintain the heat in the house: … [P]laintiffs established as follows: the […]

CLAIMANT, A POLICE OFFICER WHO WORKED AT A VEHICLE CHECKPOINT FOR TRAFFIC TO AND FROM GROUND ZERO AFTER THE WORLD TRADE CENTER WAS DESTROYED, PARTICIPATED IN THE CLEANUP WITHIN THE MEANING OF WORKERS’ COMPENSATION LAW SECTION 28; THEREFORE HIS CLAIM (BASED UPON TOXIN-RELATED INJURY) SHOULD NOT HAVE BEEN DISMISSED AS UNTIMELY (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined claimant police officer did participate in the cleanup operations at ground zero and his claim should not have been disallowed as untimely pursuant to Workers’ Compensation Law section 28. Claimant worked at a vehicle checkpoint for traffic to and from ground zero and alleged injury from […]

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PETITIONER, A POLICE OFFICER, WAS ASKED BY HER SUPERVISOR TO PICK UP A LARGE BREAKFAST ORDER FOR THE PRECINCT; PETITIONER SLIPPED AND FELL ON ICE IN THE PARKING LOT WHEN RETURNING WITH THE ORDER; PETITIONER WAS “IN SERVICE” WITHIN THE MEANING OF THE RETIREMENT AND SOCIAL SECURITY LAW WHEN SHE FELL (THIRD DEPT).

The Third Department determined the petitioner, a police officer, was in service when she slipped on ice and her application for accidental disability benefits should not have been denied on that ground. The matter was sent back for a determination when the fall was an “accident” within the meaning of the Retirement and Social Security […]

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