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FAILURE TO INSTRUCT THE GRAND JURY ON THE DEFENSE OF PROPERTY JUSTIFICATION DEFENSE REQUIRED DISMISSAL OF THE MURDER/MANSLAUGHTER INDICTMENT (CT APP).

The Court of Appeals affirmed for the reasons stated in the Fourth Department’s memorandum. People v Ball, 2020 NY Slip Op 03209, CtApp 6-9-20 SUMMARY OF THE AUGUST 22, 2019, MEMORANDUM AFFIRMED BY THE COURT OF APPEALS ON JUNE 9, 2020 The Fourth Department, over a two-justice dissent, determined County Court properly dismissed the murder/manslaughter indictment […]

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THE APPELLATE DIVISION COULD NOT DECIDE THE APPEAL OF THE DENIAL OF A SUPPRESSION MOTION ON A GROUND NOT RELIED UPON BY THE SUPPRESSION COURT (CT APP).

The Court of Appeals, reversing the Appellate Division, determined the Appellate Division could not decide the appeal of the denial of a suppression motion on a ground (exigent circumstances) that was not relied on by the suppression court: … [D]efendant moved to suppress physical evidence found inside a suitcase that he was carrying at the […]

PETITIONER WAS INITIALLY APPROVED FOR PAROLE, BUT AFTER THE VICTIM IMPACT HEARING A RESCISSION HEARING WAS HELD AND PAROLE WAS RESCINDED; THE RESCISSION WAS PROPERLY BASED UPON VICTIM IMPACT STATEMENTS SUPPLYING INFORMATION WHICH WAS NOT “NEW” BUT WHICH WAS NOT PREVIOUSLY KNOWN TO THE PAROLE BOARD (CT APP).

The Court of appeals affirmed the Third Department’s decision upholding the rescission of petitioner’s parole: Judicial intervention in Parole Board determinations is warranted “only when there is a showing of irrationality bordering on impropriety” … . Petitioner failed to make such a showing here with regard to the Parole Board’s determination to rescind his parole […]

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FAMILY COURT SHOULD HAVE MADE FINDINGS ENABLING THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) (FIRST DEPT).

The First Department, reversing Family Court, determined Family Court should have made findings enabling the child to petition for special immigrant juvenile status (SIJS): The evidence establishes that the child was unmarried and under the age of 21 at the time of the special findings hearing and order (see 8 CFR 204.11[c]). The Family Court’s appointment […]

UNSUPPORTED CEILING COLLAPSED DURING DEMOLITION; PLAINTIFF PROPERLY GRANTED SUMMARY JUDGMENT ON HIS LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department determined plaintiff’s summary judgment motion on his Labor Law 240 (1) cause of action was properly granted where an unsupported ceiling collapsed during demolition: Supreme Court properly granted plaintiff’s motion for summary judgment on his Labor Law § 240(1) claim arising from the collapse of a ceiling that was not braced or […]

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RARE CASE WHERE PLAINTIFF’S SUMMARY JUDGMENT MOTION ON LABOR LAW 200 AND COMMON-LAW NEGLIGENCE CAUSES OF ACTION WAS APPROPRIATELY GRANTED (FIRST DEPT).

The First Department determined this was a rare case where summary judgment was appropriate on a Labor Law 200, common-law negligence cause of action: Here, PSJV, the entities responsible for site cleanliness and trade coordination, at a time when the project was open to the elements, covered a recessed area of the third floor, where rainwater […]

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ABSENCE OF APPROXIMATE TIME OF THE OFFENSE IN THE SUPERIOR COURT INFORMATION (SCI) WAS NOT JURISDICTIONAL AND WAS THEREFORE WAIVED BY THE GUILTY PLEA; ABSENCE OF DA’S SIGNATURE ON THE WAIVER OF INDICTMENT DID NOT INVALIDATE IT; CONSECUTIVE SENTENCES FOR CRIMES ARISING FROM ONE CONTINUOUS INCIDENT WERE NOT ILLEGAL (THIRD DEPT).

The Third Department determined: (1) the failure to include the approximate time of the offense in the Superior Court Information (SCI) was not a jurisdictional defect and the defect was waived by the guilty plea; (2) the district attorney’s failure to sign the waiver of indictment did not invalidate it; and (3) consecutive sentences for […]

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14-MONTH DELAY IN THE TRANSCRIPTION OF THE RECORD DID NOT DEPRIVE DEFENDANT OF HIS RIGHT TO APPEAL (THIRD DEPT).

The Third Department determined the 14-month stenographic delay, which prevented the perfection of defendant’s appeal until after his release, did not deprive him of due process of law. Defendant contested his resentence after pleading guilty to a probation violation: Defendant argues that he was deprived of his right to appeal — and, thus, his right […]

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HABEAS CORPUS PETITION ORDERING THE RELEASE OF A PRISONER BECAUSE OF THE RISK POSED BY COVID-19 SHOULD NOT HAVE BEEN GRANTED; THE PETITION DID NOT DEMONSTRATE THE PRISON OFFICIALS WERE DELIBERATELY INDIFFERENT TO THE RISK (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Devine, reversing Supreme Court, determined the habeas corpus petition seeking the release from prison of a 68-year-old prisoner because of the danger of contracting COVID-19 should not have been granted. At the time the appeal was heard, the inmate, Muntaqim, was hospitalized with COVID-19. The appeal […]

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