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THE CHARGES AGAINST DEFENDANT STEMMED FROM HIS STRIKING AND SERIOUSLY INJURING AN EIGHT-POUND DOG; THERE WAS NO NEED TO INSTRUCT THE GRAND JURY ON THE JUSTIFICATION DEFENSE; INDICTMENT REINSTATED OVER A DISSENT (SECOND DEPT).

The Second Department, reversing Supreme Court on the People’s appeal, over an extensive dissent, determined the grand jury proceedings were not defective due to the prosecutor’s failure to instruct the grand jury on the justification defense. The charges against the defendant stemmed from his striking and severely injuring a dog. The Second Department held a […]

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DEFENDANT WAS HOUSED HOURS AWAY FROM HIS BROOKLYN ATTORNEY AND ATTEMPTS TO MOVE DEFENDANT TO NEW YORK CITY WERE UNSUCCESSFUL; UNDER THE CIRCUMSTANCES, DEFENDANT WAS DENIED HIS RIGHT TO CONSULT WITH HIS ATTORNEY BEFORE ENTERING A GUILTY PLEA; THE MOTION TO VACATE THE PLEA SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Miller, considering the appeal in the interest of justice, determined defendant’s motion to withdraw his guilty plea should have been granted. Defendant was housed far away from his Brooklyn attorney and the attempts to have him moved to New York City were ignored […]

ASSAULT THIRD IS AN INCLUSORY CONCURRENT COUNT OF ASSAULT SECOND (SECOND DEPT).

The Second Department noted that assault third is an inclusory concurrent count of assault second: … [T]he defendant’s conviction of assault in the third degree must be vacated as an inclusory concurrent count of assault in the second degree (see CPL 300.40[3][b]; Penal Law §§ 120.05[2]; 120.00[1] …). People v Cullins, 2020 NY Slip Op 07219, Second […]

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UNDER THE CIRCUMSTANCES, SUPREME COURT SHOULD HAVE GRANTED THE DEFENSE AND PROSECUTION’S JOINT REQUEST TO HAVE THE DEFENDANT’S COMPETENCE TO STAND TRIAL EVALUATED; ONCE A DEFENDANT IS DEEMED COMPETENT TO STAND TRIAL, THE DECISION WHETHER TO PRESENT AN INSANITY DEFENSE IS THE DEFENDANT’S, NOT THE COURT’S, TO MAKE (SECOND DEPT).

The Second Department, reversing the convictions, determined: (1) the trial judge should not have rejected the request by both defense counsel and the prosecutor to have the defendant’s mental health and fitness for trial evaluated; and (2) once a defendant is found competent to stand trial the decision whether to present an insanity defense is […]

ALTHOUGH DEFENDANT NEVER ANSWERED THE COMPLAINT, HE APPEARED BY MAKING A MOTION TO DISMISS AND PARTICIPATED IN THE LITIGATION, THEREFORE DEFENDANT’S MOTION TO VACATE THE DEFAULT SHOULD HAVE BEEN GRANTED; DISMISSAL OF THE ACTION FOR FAILURE TO INCLUDE A NECESSARY PARTY OR THE FAILURE TO JOIN OR SUBSTITUTE A PARTY WAS NOT WARRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant’s motion to vacate the default should have been granted. Although defendant did not submit an answer, he did move to dismiss the complaint, which extended his time to answer, and thereafter participated in the litigation. Supreme Court properly denied defendant’s motion to dismiss on the ground a […]

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PLAINTIFF’S FORECLOSURE ACTION SHOULD NOT HAVE BEEN DISMISSED, SUA SPONTE, AS ABANDONED PURSUANT TO 22 NYCRR 202.48; THE 60-DAY TIME LIMIT ONLY APPLIES TO THE DIRECTION TO SUBMIT A JUDGMENT “ON NOTICE” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court should not have dismissed plaintiff’s foreclosure action, sua sponte, as abandoned pursuant to 22 NYCRR 202.48. Supreme Court, after plaintiff’s unopposed motion for a judgment of foreclosure and sale, directed the plaintiff to “submit judgment.” When plaintiff submitted a proposed judgment for signature, Supreme Court dismissed […]

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THE MALICIOUS PROSECUTION CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED; AN INDICTMENT RAISES ONLY A PRESUMPTION OF PROBABLE CAUSE WHICH CAN BE REBUTTED; A PROSECUTOR IS ENTITLED ONLY TO QUALIFIED IMMUNITY AS AN INVESTIGATOR (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s malicious prosecution cause of action should not have been dismissed. Plaintiff was arrested and indicted for sex trafficking, held in jail for 10 months, and then the charges were dropped. The court noted that the indictment raised only a presumption of probable cause which can be rebutted. […]

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THE PROPERTY OWNER SUED THE VILLAGE ALLEGING THE VILLAGE BREACHED A CONTRACT IN FAILING TO RE-ZONE THE PROPERTY TO ALLOW DEVELOPMENT; A MUNICIPALITY DOES NOT HAVE THE AUTHORITY TO ENTER A CONTRACT WHICH CONTROLS ITS LEGISLATIVE POWERS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the cause of action by plaintiff property owner alleging the defendant village breached a contract to rezone the property to allow development should have been dismissed. A municipality does not have the authority to make contracts which control legislative powers and duties: Even were we to find that the […]

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THE BANK DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank (Wilmington) did not demonstrate defendants’ default in this foreclosure action and the bank’s motion for summary judgment should not have been granted: Wilmington failed to establish, prima facie, its entitlement to judgment as a matter of law, as it failed to submit evidence demonstrating the defendants’ […]

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THE BANK’S DOCUMENTARY EVIDENCE DID NOT DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION (SECOND DEPT).

The Second Department determined plaintiff bank did not demonstrate standing to bring the foreclosure action and the bank’s motion for summary judgment was properly denied: “Although the foundation for admission of a business record usually is provided by the testimony of the custodian, the author or some other witness familiar with the practices and procedures […]

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