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GRANDMOTHER, BASED UPON HER PAST CARE OF THE CHILDREN, WAS THE FUNCTIONAL EQUIVALENT OF A PARENT WHO HAD STANDING TO APPLY FOR A HEARING TO DETERMINE WHETHER THE CHILDREN SHOULD BE RETURNED TO HER, FAMILY COURT REVERSED (SECOND DEPT).

The Second Department, reversing Family Court, determined grandmother’s application for a hearing to determine whether the children should be returned to her should have been granted. The children were removed from grandmother’s care and placed in a foster home. Grandmother’s application for a hearing was denied on the ground she did not have standing. But […]

A WARNING LETTER ISSUED TO THE NYC MAYOR BY THE NYC CONFLICTS OF INTEREST BOARD MUST BE RELEASED PURSUANT TO A FOIL REQUEST BY THE NEW YORK TIMES (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, determined that a warning letter issued to the NYC mayor by the Conflicts of Interest Board (Board) must be released pursuant to a Freedom of Information Law (FOIL) request: At issue in this appeal is whether a “private” warning letter issued to the Mayor of […]

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THE DRIVER BEING VISIBLY NERVOUS, COUPLED WITH THE VEHICLE HAVING OUT-OF-STATE PLATES AND BEING IN A HIGH CRIME AREA, DID NOT PROVIDE A FOUNDED SUSPICION OF CRIMINALITY; THEREFORE THE POLICE OFFICER WAS NOT JUSTIFIED IN ASKING WHETHER THERE WERE ANY WEAPONS IN THE CAR, A LEVEL TWO INQUIRY (FIRST DEPT).

The First Department, reversing defendant’s conviction of attempted criminal possession of a weapon and dismissing the indictment, determined the police officer did not have a founded suspicion of criminality when he asked whether any weapons were in the vehicle: Defendant was a passenger in a car, bearing a Massachusetts license plate, that was stopped for […]

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BASED UPON JUROR MISCONDUCT, THE TRIAL JUDGE SET ASIDE THE JURY VERDICT FINDING DEFENDANT SEX OFFENDER DID NOT SUFFER FROM A MENTAL ABNORMALITY AND ORDERED A NEW TRIAL; THE APPELLATE DIVISION REVERSED; THE COURT OF APPEALS REINSTATED THE TRIAL JUDGE’S RULING (CT APP).

The Court of Appeals, without any discussion of the facts or the law, reversed the Appellate Division (Matter of State of New York v Donald G., 2020 NY Slip Op 04716, Fourth Dept 8-20-20) and reinstated the trial court’s setting aside the verdict based on juror misconduct. The jury had decided defendant, a sex offender, did […]

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EXECUTIVE LAW 552 (PART OF THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS ACT), WHICH CREATED A SPECIAL PROSECUTOR TO PROSECUTE CRIMES OF ABUSE AND NEGLECT OF VULNERABLE PERSONS IN STATE FACILITIES, IS UNCONSTITIONAL TO THE EXTENT IT ALLOWS THE PROSECUTION OF CRIMES BY AN UNELECTED APPOINTEE OF THE GOVERNOR (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, over two concurring opinions, determined Executive Law 552 (part of the Protection of People with Special Needs Act), which created a special prosecutor to prosecute crimes of abuse or neglect of vulnerable persons in facilities operated by the state, is unconstitutional to the extent […]

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WHERE THE BANK ATTEMPTS TO DEMONSTRATE COMPLIANCE WITH THE NOTICE REQUIRMENTS OF RPAPL 1304 WITH PROOF OF THE STANDARD OFFICE MAILING PROCEDURE, A DEFENDANT BORROWER MAY REBUT THE PRESUMPTION OF PROPER MAILING AND RECEIPT WITH PROOF OF A MATERIAL DEVIATION FROM THE BANK’S MAILING PROCEDURE; WHERE THERE ARE MULTIPLE BORROWERS, THE BANK NEED ONLY NAME ONE IN THE ELECTRONIC FILING REQUIRED BY RPAPL 1306 (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a concurring opinion, answering two certified questions from the Second Circuit, determined: (1) where, in an action for foreclosure, the bank attempts to demonstrate compliance with the mailing and notice requirements of RPAPL 1304 with proof of the standard office mailing procedure, a […]

HERE THE ASSAULT SECOND DEGREE COUNT WAS AN INCLUSORY CONCURRENT COUNT OF ASSAULT ON A POLICE OFFICER; THE ASSAULT SECOND CONVICTION WAS REVERSED AND THE COUNT DISMISSED; THE TERM “INCLUSORY CONCURRENT COUNT” WAS EXPLAINED (FOURTH DEPT).

The Fourth Department noted that assault in the second degree is an inclusory concurrent count of assault on a police officer and the assault second conviction must therefore be reversed and the count dismissed: Counts are concurrent when “concurrent sentences only may be imposed in case of conviction thereon,” and such counts “are ‘inclusory’ when […]

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THERE WAS NO EVIDENCE DEFENDANT POSSESSED THE FIREARM BEFORE FORMING THE INTENT TO SHOOT; THE POSSESSION OF A WEAPON SENTENCE MUST RUN CONCURRENTLY WITH THE SENTENCES FOR THE SHOOTING-RELATED OFFENSES (FOURTH DEPT).

The Fourth Department, directing that the sentences run concurrently, noted there was no evidence defendant possessed the loaded firearm before he formed the intent to shoot the victim: Defendant appeals from a judgment convicting him upon his plea of guilty of three counts of robbery in the first degree (Penal Law § 160.15 [1], [4]), […]

THE APPLICABLE INDUSTRIAL CODE PROVISION APPLIES TO MORE THAN JUST THE OBSTRUCTION OF PASSAGEWAYS; IT ALSO APPLIES TO BUILDING MATERIAL WHICH IS NOT PROPERLY STORED AND SECURED (AND FALLS); PLAINTIFF’S LABOR LAW 241 (6) CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s Labor Law 241 (6) cause of action should not have been dismissed in this falling object case. Plaintiff was struck by a component of an unbuilt mail box which fell: Plaintiff’s Labor Law § 241 (6) claim is predicated on 12 NYCRR 23-2.1 (a) (1), which provides […]

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THE JUDGE’S REFUSAL TO HOLD A PRE-TRIAL HUNTLEY HEARING ON THE VOLUNTARINESS OF DEFENDANT’S STATEMENTS WAS REVERSIBLE ERROR (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined the judge’s refusal to hold a Huntley hearing to determine the voluntariness of defendant’s statements until several witnesses testified at trial was reversible error: “When [a] motion [to suppress evidence] is made before trial, the trial may not be commenced until determination of the motion” (CPL 710.40 [3] […]

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