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Entries by Bruce Freeman

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DEFENDANT WAS NOT INFORMED OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, THE JUDGE IMPROPERLY IMPOSED AN ENHANCED SENTENCE AND CHANGED THE TERMS OF THE PLEA AGREEMENT; GUILTY PLEA VACATED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea in the interest of justice, determined: (1) defendant was not informed of the rights he was giving up by pleading guilty; (2) the judge improperly enhanced defendant’s sentence; and (3) the judge improperly changed the terms of the plea agreement: County Court advised defendant that, by pleading guilty, […]

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ALTHOUGH DEFENDANT DID NOT GIVE TIMELY NOTICE OF ALIBI EVIDENCE, COUNTY COURT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE BY PRECLUDING THE ALIBI EVIDENCE; THE UNPRESERVED ERROR WAS CONSIDERED IN THE INTEREST OF JUSTICE (THIRD DEPT).

The Third Department, reversing the grand larceny conviction in the interest of justice, determined defendant’s late request to present alibi evidence should have been granted: County Court abused its discretion by precluding defendant from introducing testimony from defendant’s father at trial. …  The court rested its entire conclusion on the failure to comply with the Criminal Procedure […]

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DEFENDANT WAS THE TARGET OF A STING WHERE THE INVESTIGATOR POSED AS THE STEPFATHER OF A 14-YEAR-OLD GIRL WITH WHOM THE DEFENDANT WAS INVITED TO HAVE SEX; WHEN THE INVESTIGATOR SUMMONED THE STEPDAUGHTER TO MEET THE DEFENDANT, HE GOT UP AND WALKED AWAY; THE ATTEMPTED RAPE, CRIMINAL SEXUAL ACT AND ENDANGERING THE WELFARE OF A CHILD CONVICTIONS WERE NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (THIRD DEPT).

The Third Department, reversing defendant’s convictions and dismissing the indictment, determined defendant did not come close enough to committing the sexual offenses suggested by the undercover investigator to meet the criteria for attempted rape, attempted criminal sexual act, and attempted endangering the welfare of a child. The undercover investigator suggested sex with his fictional 14-year-old […]

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FATHER SHOULD NOT HAVE BEEN SENTENCED TO JAIL FOR NONPAYMENT OF CHILD SUPPORT BECAUSE HE HAD PAID THE ARREARS BEFORE THE ORDER OF COMMITMENT WAS ISSUED (THIRD DEPT).

The Third Department, reversing Family Court, determined it was an abuse of discretion to sentence father to jail for failure to pay child support after father paid the arrears: The father contends that Family Court abused its discretion by imposing a 90-day jail sentence for the father’s willful violation of the prior support order. We […]

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CLAIMANT’S APPLICATION TO SERVE A LATE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, DESPITE THE ABSENCE OF A VALID EXCUSE FOR THE DELAY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined petitioner’s application to serve a late notice of claim with respect to one of the two defendants (Albany Port District Commission) should have been granted. Although the excuse for failure to file was inadequate (ignorance of the requirement), the defendant had timely notice of the claim by virtue […]

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ALTHOUGH THE CARRIER HAD WAIVED ITS DEFENSE THAT THE INJURIES DID NOT ARISE OUT OF CLAIMAINT’S EMPLOYMENT BY FAILING TO SERVE A PREHEARING CONFERENCE STATEMENT, CLAIMANT WAS STILL REQUIRED TO PRESENT SUBSTANTIAL EVIDENCE OF SUCH A CONNECTION (THIRD DEPT).

The Third Department, reversing the Workers’ Compensation Board, determined that, although the carrier had waived its defense that claimant’s injuries did not arise out of claimants’ employment as a police chief (by not serving a prehearing conference statement), the claimant was still required to present affirmative proof of that causal connection: … [W]e agree with […]

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ONE PURPOSE FOR ASSESSING ATTORNEY’S FEES AGAINST THE AGENCY IN A FREEDOM OF INFORMATION LAW CASE IS TO DISCOURAGE DELAYS IN RESPONSES TO REQUESTS FOR DOCUMENTS; THEREFORE, EVEN THOUGH THE DEPARTMENT OF ENVIRONMENTAL PROTECTION (DEP) TURNED OVER THE DOCUMENTS BEFORE THE APPEAL, THE DEP STILL SHOULD PAY THE ATTORNEY’S FEES RELATED TO THE APPEAL (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the request for attorney’s fees for the appeal in this Freedom of Information Law action should not have been denied. Supreme Court reasoned that the Department of Environmental Protection (DEP) had turned over the requested documents before the appeal: Supreme Court suggested that it would be “unduly punitive” […]

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THE REAL PROPERTY PASSED TO THE BENEFICIARY IN THE WILL UPON DEATH, NOT UPON SUBSEQUENT PROBATE; THEREFORE THE CONVEYANCE WAS VALID AND THE DEED SHOULD NOT HAVE BEEN DEEMED VOID (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined plaintiff’s deed inherited the real property upon decedent’s death, not after probate. Therefore the conveyance of the property by the beneficiary, McKenzie, to plaintiff was valid: … [T]he decedent’s will, unequivocally and without limitation, devised McKenzie one third of the residuary estate, and this interest vested in McKenzie […]

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THE BANK DID NOT PRESENT ADMISSIBLE EVIDENCE OF DEFENDANTS’ DEFAULT IN THIS FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not present admissible evidence of defendants’ default in this foreclosure action: … [T]he plaintiff failed to establish, prima facie, a default in payment by Vanterpool and Chalas [defendants]. While the plaintiff submitted an affidavit by someone with personal knowledge of the plaintiff’s loan servicer’s business […]

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THE BANK PRESENTED INADMISSIBLE EVIDENCE OF STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank did not submit admissible evidence of standing to bring the foreclosure action: While a witness may always testify as to matters within his or her personal knowledge through personal observation … , here, Klein [plaintiff’s counsel] did not provide any factual details concerning when Cohn & […]

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