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Entries by Bruce Freeman

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THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT PROVIDES NO BROADER SCOPE FOR THE SEARCH THAN WOULD A WARRANT ISSUED BASED ON THE SAME FACTS; HERE THE SMALL AMOUNT OF MARIJUANA ON THE CONSOLE OF DEFENDANT’S CAR DID NOT PROVIDE PROBABLE CAUSE TO SEARCH THE TRUNK WHERE A FIREARM WAS FOUND (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Kapnick, reversing Supreme Court and holding that decisions to the contrary should no longer be followed, determined the odor of marijuana smoke and the small about of marijuana on the console of the defendant’s car did not, pursuant to the automobile exception to the warrant requirement, […]

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A VALID WAIVER OF APPEAL PRECLUDES AN APPEAL ALLEGING THE VIOLATION OF DEFENDANT’S RIGHT TO AN OPPORTUNITY TO MAKE A PERSONAL STATEMENT AT SENTENCING (CT APP).

The Court of Appeals, in a brief memorandum decision, over an extensive two-judge dissent, determined a waiver of appeal precluded an appeal alleging the violation of defendant’s right to an opportunity to make a personal statement at sentencing: … [D]efendant’s contention that his CPL 380.50(1) right to an opportunity to make a personal statement at […]

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THE USE OF TRANSLATORS TO DOCUMENT INFORMATION IN AN ACCUSATORY INSTRUMENT DID NOT RENDER THE INSTRUMENTS FACIALLY INSUFFICIENT BY ADDING A LAYER OF HEARSAY (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over a two-judge dissent, determined that the use of translators in documenting information in an accusatory instrument did not create an additional layer of hearsay. The three accusatory instruments at issue, therefore, were deemed facially sufficient. Two of the accusatory instruments did not refer […]

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THE GENERAL OBLIGATIONS LAW PROHIBITION OF SEEKING REIMBURSEMENT OF MEDICAL COSTS FROM A TORT ACTION SETTLEMENT DOES NOT APPLY TO SELF-FUNDED EMPLOYEE BENEFIT PLANS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the General Obligations Law prohibition of seeking reimbursement of medical costs out of an insured’s tort action settlement does not apply to self-funded employee benefit plans. The infant plaintiff was injured in an automobile accident and, after this personal injury action was commenced, sought the Supreme Court’s approval […]

THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF WAS ENGAGED IN REPAIR AS OPPOSED TO ROUTINE MAINTENANCE OF THE AIR CONDITIONER WHEN HE WAS INJURED; THEREFORE DEFENDANT’S MOTION TO DIMSISS THE LABOR LAW 240(1) CAUSE OF ACTION WAS PROPERLY DENIED; HOWEVER THE LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN DISMIISED BECAUSE PLAINTIFF WAS NOT INVOLVED IN CONSTRUCTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court determined defendant’s (Chase’s) motion for summary judgment on the Labor Law 240(1) cause of action was properly denied but Chase’s motion for summary judgment on the Labor Law 241(6) cause of action should have been granted. There was a question of fact whether plaintiff was engaged in routine […]

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THE ESTATE WAS A NECESSARY PARTY IN THIS FORECLOSURE ACTION; SUPREME COURT SHOULD HAVE ORDERED THE JOINDER OF THE ESTATE INSTEAD OF DISMISSING THE COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court properly held that the estate was a necessary party in this foreclosure action, but failing the include the estate did no warrant dismissal of the complaint. Rather, the court should directed that the estate be joined as a party: Supreme Court did not err in finding […]

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DEFENDANT FAILED TO PRESENT EVIDENCE THAT THE AREA OF PLAINTIFF’S SLIP AND FALL WAS INSPECTED OR CLEARED OF ICE AND SNOW DURING THE TWO DAYS PRIOR TO THE FALL; THEREFORE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE AS A MATTER OF LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant UPS did not demonstrate the lack of constructive notice of the snow and ice condition upon which plaintiff allegedly slipped and fell: UPS failed to demonstrate, prima facie, that it lacked constructive notice of the ice condition on which the plaintiff allegedly slipped and fell in the […]

THE COUNTY CHARTER PROVISION PROHIBITING SERVICE AS A COUNTY LEGISLATOR “FOR MORE THAN 12 CONSECUTIVE YEARS” DOES NOT PRECLUDE A NEW TERM THAT IS NOT CONSECUTIVE TO THE PRECEDING TERM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the provision of the Suffolk County Charter which prohibits serving as a county legislature “for more than 12 consecutive years” did not preclude petitioner from running for a new term that was not consecutive to the preceding term: “[T]he plain language of the statute . . . is […]

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THE FAILURE TO REQUEST A DOWNWARD DEPARTURE DID NOT CONSTITUTE INEFFECTIVE ASSISTANCE; THE DISSENT DISAGREED (SECOND DEPT).

The Second Department, over a dissent, determined counsel’s failure to ask for a downward departure in the SORA risk level assessment proceeding did not amount to ineffective assistance of counsel: Assuming arguendo that in hindsight, the defendant’s counsel, instead of simply opposing the People’s request for an upward departure from the Board’s assessment of points, […]

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THE EVIDENCE RELIED UPON BY COUNTY COURT TO DENY DEFENDANT’S RESENTENCING PURSUANT TO THE DRUG LAW REFORM ACT (DLRA) WAS NOT SUFFICIENT TO OVERCOME THE STATUTORY PRESUMPTION FAVORING RESENTENCING (SECOND DEPT).

Second Department, reversing County Court, determined the evidence relied upon by County Court was not sufficient to overcome the statutory presumption in favor of resentencing pursuant to the Drug Law Reform Act (DLRA): Where, as here, a defendant is eligible for resentencing relief pursuant to the 2004 DLRA and CPL 440.46, there is a statutory […]

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