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Entries by Bruce Freeman

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DEFENDANT’S FOR CAUSE CHALLENGE TO A PROSPECTIVE JUROR WHO COULD NOT SAY HE WOULD NOT HOLD DEFENDANT’S FAILURE TO TESTIFY AGAINT HIM SHOULD HAVE BEEN GRANTED; A POLICE OFFICER WHO SPENT ONLY 10 OR 15 MINUTES WITH THE DEFENDANT SHOULD NOT HAVE BEEN ALLOWED TO IDENTIFY THE DEFENDANT IN A VIDEO, DESPITE THE CHANGE IN DEFENDANT’S APPEARANCE (SECOND DEPT).

The Second Department, reversing defendant’s convictions and ordering a new trial, determined defendant’s for cause challenge to a prospective juror who said he would hold defendant’s failure to testify against him should have been granted. Because there will be a new trial, the Second Department noted that a police officer who had limited contact with […]

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IN THIS CHILD VICTIMS ACT CASE ALLEGING DAILY SEXUAL ABUSE BY A TEACHER, THE PLAINTIFF’S AND A FACULTY MEMBER’S DEPOSITION TESTIMONY RAISED A QUESTION OF FACT ABOUT WHETHER DEFENDANT SCHOOL DISTRICT HAD CONSTRUCTIVE NOTICE OF THE TEACHER’S PROPENSITY FOR ABUSE AND THE ABUSE ITSELF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant school district’s motion for summary judgment in this Child Victims Act case should not have been granted. Plaintiff alleged daily sexual abuse by a teacher. The school district submitted plaintiff’s deposition transcript and a faculty member’s deposition transcript in support of the summary judgment motion. The plaintiff’s […]

WHETHER THE TRENCH WAS THREE OR SEVEN FEET DEEP, PLAINTIFF SHOULD HAVE BEEN PROVIDED WITH A LADDER OR A RAMP TO DESCEND INTO IT BUT WAS TOLD TO JUMP DOWN; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on the Labor Law 240(1) cause of action. Plaintiff was injured when he jumped into an excavated trench. Plaintiff testified that the trench was five to seven feet deep and he asked for a ladder but was told to jump down. There […]

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HERE DEFENDANT MADE A TIMELY REQUEST TO REPRESENT HIMSELF WHICH WAS DENIED WITHOUT ANY INQUIRY; DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO SELF-REPRESENTATION (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissenting opinion (three judges), reversing defendant’s convictions and ordering a new trial, determined that the judge’s failure to conduct an inquiry before denying defendant’s request to represent himself violated his constitutional right to self-representation: A defendant has a constitutional right to proceed […]

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THE PRESENTENCE INTERVIEW WAS CANCELLED DUE TO TECHNICAL DIFFICULTIES; THEREFORE THE PRESENTENCE REPORT WAS DEVOID OF INFORMATION ABOUT DEFENDANT’S EDUCATION, EMPLOYMENT, HEALTH STATUS, MENTAL HEALTH AND DEFENDANT’S MOTIVE; ALTHOUGH DEFENDANT WAS SENTENCED IN ACCORDANCE WITH THE PLEA AGREEMENT, THE DEFICIENT PRESENTENCE INVESTIGATION AND REPORT REQUIRED VACATION OF THE SENTENCE (FIRST DEPT).

The First Department, vacating defendant’s negotiated sentence, determined the failure to interview the defendant before creating the presentence report  was tantamount to the failure to conduct the mandatory presentence investigation. The defendant did not take any action to avoid the presentence interview which was scheduled but cancelled due to technical difficulties: At sentencing, defense counsel […]

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MOTHER’S APPEALS FROM EXPIRED PERMANENCY HEARING ORDERS (RE: CHILDREN’S PLACEMENT IN FOSTER CARE) WERE PROPERLY DISMISSED AS MOOT, TWO COMPREHENSIVE DISSENTING OPINIONS (THREE DISSENTING JUDGES) (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over two comprehensive dissenting opinions (three judges), determined the Appellate Division had properly dismissed mother’s appeals of expired permanency hearing orders (re: children’s placement in foster care) as moot, and properly declined to hear the appeals under an exception to the mootness doctrine: Generally, […]

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DEFENDANT IN THIS GRAND LARCENY CASE WAS DETAINED BY STORE SECURITY GUARDS; DEFENSE COUNSEL FIRST LEARNED THE IDENTITY OF ONE OF THE STORE’S SECURITY PERSONNEL ON THE EVE OF THE HEARING TO DETERMINE WHETHER THE SECURITY GUARDS WERE LICENSED TO EXERCISE POLICE POWERS OR WERE AGENTS OF THE POLICE; THEREFORE DEFENSE COUNSEL’S REQUEST FOR AN ADJOURNMENT TO SUBPOENA THE STORE’S EMPLOYMENT POLICIES AND OTHER EMPLOYMENT INFORMATION SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court and ordering a new “state action” hearing, determined defense counsel’s request for an adjournment to subpoena information about the store security guards’ employment should have been granted. The issue is whether the store security guards who detained the defendant in this grand larceny case were licensed to exercise police […]

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PURSUANT TO THE “INTERNAL AFFAIRS” DOCTRINE, PLAINTIFF, A NEW YORK CORPORATION AND BENEFICIAL OWNER OF SHARES IN BARCLAYS, AN ENGLISH CORPORATION, DID NOT HAVE STANDING TO BRING A DERIVATIVE SUIT ON BEHALF OF BARCLAYS AGAINST OFFICERS AND MANAGERS OF A NEW YORK AFFILIATE OF BARCLAYS IN NEW YORK (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, over a comprehensive dissenting opinion, determined that the Business Corporation Law (BCL)  (sections 626(a) and 1319(a)(2)) has not displaced the “internal affairs” doctrine, a choice-of-law rule providing that the substantive law of the place of incorporation governs disputes about the rights and relationships of […]

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PLAINTIFF WAS INJURED WHEN A STEP BROKE AS HE STEPPED ON IT; THE LABOR LAW 200 AND NEGLIGENCE CAUSES OF ACTION SHOULD HAVE BEEN DISMISSED BECAUSE THERE WAS NO SIGN THE STEP WAS DEFECTIVE; HOWEVER, THE LABOR LAW 241(6) CAUSE OF ACTION, BASED ON AN INDUSTRIAL CODE PROVISION REQUIRING THAT A STAIRCASE BE “FREE OF DEFECTS,” PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, determined the Labor Law 200 and negligence causes of action based upon a step which broke when plaintiff stepped on it should have been dismissed, but the Labor Law 241(6) cause of action, based upon the same defective step, properly survived summary judgment: Defendants, owner and construction manager, […]

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GIVING THE CORRECT “PRESUMPTION OF INNOCENCE” JURY INSTRUCTION THREE TIMES WITHOUT ACKNOWLEDGING THE ERRONEOUS INSTRUCTION WAS REVERSIBLE ERROR; CROSS-EXAMINATION ABOUT A CIVIL SUIT AGAINST A POLICE OFFICER WHO ALLEGEDLY SHOT THE PLAINTIFF SHOULD HAVE BEEN ALLOWED; THE JUDGE SHOULD HAVE HELD AN IN CAMERA REVIEW OF A POLICE OFFICER’S DISCIPLINARY RECORD (FIRST DEPT). ​

The First Department, reversing defendant’s convictions and ordering a new trial, determined: (1) although the judge accurately instructed the jury on the presumption of innocence three times, the judge failed to acknowledge the erroneous instruction, requiring reversal; (2) the judge should have allowed cross-examination of a police officer about a civil case in which the […]

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