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Entries by Bruce Freeman

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ALTHOUGH HARMLESS, IT WAS ERROR TO ADMIT THE CONTENT OF SOCIAL MEDIA ACCOUNTS WITHOUT AUTHENTICATING THE ACCOUNTS, PHOTOGRAPHS AND STATEMENTS (SECOND DEPT).

The Second Department determined it was (harmless) error to admit in evidence the content of social media accounts which was not authenticated: We disagree … with the Supreme Court’s determination admitting into evidence certain content from various social media accounts … . The People failed to present sufficient evidence that the subject social media accounts […]

THE WAIVER OF APPEAL WAS NOT KNOWINGLY AND VOLUNTARILY EXECUTED; NO MENTION OF THE WAIVER WAS MADE UNTIL AFTER THE GUILTY PLEA AND THE EXPLANATION OF THE RIGHTS AT STAKE WAS INSUFFICIENT (SECOND DEPT).

The Second Department determined the waiver of appeal was invalid because it was first mentioned after the guilty plea and the explanation of the purportedly waived appellate rights was insufficient: … [T]he appeal waiver was not mentioned by the Supreme Court prior to the defendant’s plea of guilty, but only afterward. Accordingly, “the defendant received […]

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THE APPELLATE COURT, OVER A TWO-JUSTICE DISSENT, REFUSED TO LOWER DEFENDANT’S SENTENCE BY ONE DAY TO AVOID DEPORTATION (SECOND DEPT).

The Second Department, over a two-justice dissent, determined defendant’s one-year sentence for assault, which had already been served at the time of the appeal, should not be reduced by one-day to avoid the immigration consequences of the one-year sentence (deportation): On this record, even taking into specific consideration the potential immigration consequences of the jury’s […]

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THE SENTENCES FOR ASSAULT AND POSSESSION OF A WEAPON SHOULD NOT HAVE BEEN IMPOSED CONSECUTIVELY (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the evidence did not support consecutive sentences for assault second and criminal possession of a weapon second: … [T]he sentence imposed on the conviction of assault in the second degree should not run consecutively to the sentence imposed on the conviction of attempted criminal possession of a […]

THE FEDERAL FELONY DID NOT QUALIFY AS A NEW YORK PREDICATE FELONY, DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A SECOND FELONY OFFENDER (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant should not have been sentenced as a second felony offender because the federal conviction did not qualify as the equivalent of the New York felony: … [T]he defendant was improperly adjudicated a second felony offender on the basis of a prior federal conviction for possession of a firearm […]

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ONCE SUPREME COURT FOUND DEFENDANT’S COUNSEL INEFFECTIVE IT WAS REQUIRED TO VACATE THE CONVICTION; DEFENDANT MOVED TO VACATE HIS CONVICTION BECAUSE HE REJECTED A PLEA OFFER WITHOUT BEING INFORMED HE COULD BE SUBJECT TO LIFE IN PRISON AS A PERSISTENT FELONY OFFENDER AFTER TRIAL; SUPREME COURT SHOULD NOT HAVE REINSTATED THE ORIGINAL SENTENCE AFTER FINDING DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined, once the motion court found defendant’s counsel ineffective for failing to inform defendant he risked being sentenced to life in prison as a persistent felony offender after trial, the motion court could not leave the convictions in place and reinstate the original sentence. Defendant had been offered a […]

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MOTIONS TO QUASH SUBPOENAS ISSUED IN SUPPORT OF OBJECTIONS TO AN ACCOUNTING OF A TRUST SHOULD NOT HAVE BEEN GRANTED; COUNSEL’S SUBMISSION OF EMAILS DEMONSTRATING A GOOD FAITH EFFORT TO SETTLE WERE SUFFICIENT (SECOND DEPT).

The Second Department, reversing Surrogate’s Court, determined the motions to quash subpoenas issued by appellants who objected to an accounting of a trust should not have been granted and the appellants’ counsel’s submissions demonstrating a good faith effort to settle the matter (22 NYCRR 202.7) were sufficient: In a proceeding pursuant to article 22 of the […]

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AN INDICATION THE DEFENDANT’S VEHICLE HAD BEEN IMPOUNDED, REVEALED WHEN THE TROOPER RAN THE PLATES, DID NOT SUPPORT THE TRAFFIC STOP; THE WEAPON AND DRUGS FOUND IN THE VEHICLE SHOULD HAVE BEEN SUPPRESSED; APPELLATE DIVISION REVERSED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a concurring opinion and an extensive dissenting opinion, reversing the Appellate Division, determined the state trooper did not have probable cause or reasonable suspicion to support the traffic stop. The weapon and drugs found in a search of defendant’s (Mr. Hinshaw’s) car should have […]

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THE CONSTRUCTION OF TWO TOWERS, TWICE THE HEIGHT OF SURROUNDING BUILDINGS, DID NOT VIOLATE THE NYC ZONING RESOLUTION, THEREFORE THE NYC PLANNING COMMISSION’S APPROVAL OF THE PROJECT WITHOUT THE NEED FOR A SPECIAL PERMIT WAS NOT ARBITRARY AND CAPRICIOUS (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, reversing Supreme Court, determined the proposed construction of two towers, twice the height of the surrounding buildings, did not violate the zoning resolution  (ZR). Therefore the approval of the construction by the NYC Planning Commission (CPC) without the need for a special permit was not arbitrary and capricious: […]

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PLEADING REQUIREMENTS FOR A BREACH OF FIDUCIARY DUTY CAUSE OF ACTION WERE NOT MET; ATTORNEY REPRESENTING A CORPORATION DOES NOT OWE A FIDUCIARY DUTY TO SHAREHOLDERS OR EMPLOYEES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the pleading requirements for a breach of fiduciary duty cause of action were not met and defendant attorneys, who represented the corporation, not the decedent, did not owe a fiduciary duty to decedent: We disagree with the Supreme Court’s determination denying that branch of the Berger defendants’ [attorneys’] motion […]

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