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Entries by Bruce Freeman

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DESPITE HAVING MADE A PRIOR MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE GROUNDS, DEFENDANT WAS ENTITLED TO A HEARING ON THE INSTANT MOTION WHICH WAS SUPPORTED BY AN AFFIDAVIT BY HIS ATTORNEY WHO ACKNOWLEDGED HE TOLD DEFENDANT A GUILTY PLEA WOULD NOT RESULT IN DEPORTATION (THIRD DEPT).

The Third Department, reversing County Court, determined defendant was entitled to a hearing on his motion to vacate his conviction on ineffective assistance grounds. The fact that defendant had made a similar motion which was denied did not preclude the instant motion which, unlike the prior motion, was supported by an affidavit from the attorney who […]

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ALL THE ITEMS IN DEFENDANT’S CAR WERE NOT LISTED IN A WRITTEN INVENTORY, IN VIOLATION OF THE POLICE DEPARTMENT’S INVENTORY-SEARCH POLICY; THEREFORE THE FIREARM WAS NOT FOUND DURING A VALID INVENTORY SEARCH AND SHOULD HAVE BEEN SUPPRESSED (THIRD DEPT).

The Third Department, reversing Supreme Court, over a dissent, determined the firearm seized from defendant’s car before the car was towed from a crash scene was not found in a valid inventory search. No written inventory was created. The Third Department held that, under the Albany Police inventory search policy, which the court found reasonable, […]

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GRAND JURY EVIDENCE WAS LEGALLY SUFFICIENT IN THIS AGGRAVATED UNLICENSED OPERATION CASE; THE INDICTMENT SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing County Court, determined, on the People’s appeal, the evidence presented to the grand jury was legally sufficient to support the charged crimes (aggravated unlicensed operation of a motor vehicle). One issue was whether the ID defendant showed to the officer at the traffic stop was sufficient to connect the defendant to the […]

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MOTHER PRESENTED SUFFICIENT EVIDENCE IN SUPPORT OF HER PRO SE PETITION FOR A MODIFICATION OF CUSTODY TO WARRANT A HEARING (THIRD DEPT).

The Third Department, reversing Family Court, determined that mother presented enough evidence in her pro se petition for a modification of custody to warrant a hearing: “A parent seeking to modify an existing custody order first must demonstrate that a change in circumstances has occurred since the entry thereof that is sufficient to warrant the court […]

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THE ADMINISTRATIVE LAW JUDGE AND THE HEARING COMMITTEE HAD THE DISCRETION TO ACCEPT A LATE ANSWER FROM PETITIONER-PHYSICIAN WHO WAS FACING REVOCATION OF HER MEDICAL LICENSE; THE REJECTION OF THE ANSWER ON THE GROUND THE ALJ AND HEARING COMMITTEE DID NOT HAVE THE DISCRETION TO ACCEPT IT AS A MATTER OF LAW WAS ARBITRARY AND CAPRICIOUS (THIRD DEPT).

The Third Department determined the Administrative Law Judge’s (ALJ’s) and the Bureau of Professional Medical Conduct (BPMC) Hearing Committee’s rejection of the petitioner-physician’s attempt to file a late answer to the charges was arbitrary and capricious. The ALJ and the Hearing Committee determined they did not have discretion, as a matter of law, under Public […]

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FAMILY COURT ALLOWED MOTHER TO TESTIFY BY TELEPHONE WITHOUT WARNING HER A NOTARY SHOULD BE PRESENT SO SHE COULD BE SWORN AND THEN, SUA SPONTE, REJECTED MOTHER’S TESTIMONY BECAUSE IT WAS NOT SWORN; NEW HEARING ORDERED (THIRD DEPT).

The Third Department, reversing Family Court in this child support violation proceeding, determined that mother’s testimony by telephone should not have been rejected, sua sponte, because it was unsworn. Family Court allowed mother to testify and mother, who was facing incarceration for the child-support violation, had not been warned to have a notary present so […]

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QUESTION OF FACT WHETHER FORFEITURE OF DEFENDANT’S VEHICLE WOULD BE A CONSTITUTIONALLY IMPERMISSIBLE EXCESSIVE FINE (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined there was a question of fact whether forfeiture of defendant’s vehicle would impose an excessive hardship and would constitute an constitutionally impermissible excessive fine. Defendant pled guilty to possession of a weapon which was found in his vehicle: Plaintiff established by a preponderance of the evidence that […]

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QUESTIONS OF FACT ABOUT THE OWNERSHIP OF A SIDEWALK UTILITIES GRATE PRECLUDED SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE (FIRST DEPT).

The First Department, reversing Supreme Court, in this slip and fall case, determined there were questions of fact about whether: (1) a sidewalk grate belonged to the abutting landowner (11 Madison) or the utility (Con Ed); and (2) whether the installation of the grate by the prior owner of the property constituted a special use […]

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POLICE DID NOT HAVE REASONABLE SUSPICION DEFENDANT WAS ENGAGED IN CRIMINAL ACTIVITY AT THE TIME OF THE STOP AND PURSUIT; THEREFORE THE WEAPON DISCARDED BY DEFENDANT SHOULD HAVE BEEN SUPPRESSED (FIRST DEPT).

The First Department, reversing Supreme Court and dismissing the indictment, determined the police who stopped and pursued the defendant did not have reasonable suspicion of criminal activity at the outset. So the weapon discarded by the defendant should have been suppressed: “Police pursuit is regarded as significantly impeding a person’s freedom of movement, thus requiring […]

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THE ATTORNEY GENERAL PROPERLY SERVED VALID SUBPOENAS ON THE VIRTUAL CURRENCY COMPANIES PURSUANT TO GENERAL BUSINESS LAW 352 (MARTIN ACT) IN A FRAUD INVESTIGATION; ONCE THE MOTIONS TO VACATE OR MODIFY THE EX PARTE ORDER RE: THE ISSUANCE OF THE SUBPOENAS WAS DETERMINED, THE COURT NO LONGER HAD ANY AUTHORITY OVER THE ATTORNEY GENERAL’S INVESTIGATION; THEREFORE THE VIRTUAL CURRENCY COMPANIES’ SUBSEQUENT MOTION TO DISMISS WAS NOT PROPERLY BEFORE SUPREME COURT OR THE APPELLATE DIVISION (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, determined that the Attorney General (petitioner) properly served subpoenas on the virtual currency companies (respondents) pursuant to General Business Law (GBL) 352 (Martin Act) in a fraud investigation. The subpoenas were attacked on several grounds, all of which were rejected: (1) subject matter jurisdiction (arguing […]

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