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Entries by Bruce Freeman

THE OMISSION OF THE TIME AND PLACE OF THE OFFENSE FROM THE SUPERIOR COURT INFORMATION WAS NOT A JURISDICTIONAL DEFECT AND ANY ERRORS WERE FORFEITED BY THE GUILTY PLEA (THIRD DEPT).

The Third Department determined that the failure to include the time and place of the crime in the superior court information (SCI) was not a jurisdictional defect and any errors were forfeited by the guilty plea: … [D]efendant contends that the waiver of indictment and SCI omitted essential information required by CPL 195.20, rendering the […]

THE PARTIES DID NOT AGREE THAT THE INITIAL ‘PARTIAL’ ARBITRATION AWARD WAS A FINAL AWARD; THEREFORE THE ARBITRATORS HAD THE AUTHORITY TO REVISIT THE MATTER AND ISSUE A VALID FINAL AWARD (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Stein, reversing the Appellate Division, determined the arbitrators had the power to revisit a “partial final award” and issue a valid final award. The Appellate Division had held the doctrine of functus officio prohibited the arbitrators from revisiting the initial award: … [T]he Appellate Division […]

CPL 300.40 (3) (b), WHICH REQUIRES DISMISSAL OF INCLUSORY CONCURRENT COUNTS, APPLIES ONLY TO VERDICTS AFTER TRIAL, NOT TO GUILTY PLEAS (THIRD DEPT).

The Third Department determined that Criminal Procedure Law 300.40 (3) (b), which requires dismissal of inclusory concurrent counts, applies only to verdicts after trial and not to cases resolved by guilty plea. Defendant confessed to killing a mother and daughter and he was charged with two counts of first degree murder and two counts of […]

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EXTRINSIC COLLATERAL DOCUMENTARY EVIDENCE SHOULD NOT HAVE BEEN ADMITTED TO IMPEACH DEFENDANT DOCTOR’S CREDIBILITY IN THIS MEDICAL MALPRACTICE TRIAL; DEFENDANT’S MOTION TO SET ASIDE THE $400,000 VERDICT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this medical malpractice action, determined the defendant doctor’s motion to set aside the plaintiff’s $400,000 verdict should have been granted. The trial court should not have allowed extrinsic documentary evidence on collateral matters to impeach defendant’s credibility: “A motion pursuant to CPLR 4404(a) to set aside a verdict and […]

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PLAINTIFF DID NOT HAVE AN EXCUSE FOR FAILING TO MOVE FOR A DEFAULT JUDGMENT FOR FOUR YEARS; THE ACTION WAS DISMISSED AS ABANDONED WITH NO NEED TO CONSIDER WHETHER THE ACTION WAS MERITORIOUS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s failure to timely seek a default judgment in this foreclosure action required the action to be dismissed as abandoned. Plaintiff’s failure to offer an adequate excuse mandated dismissal without considering whether plaintiff had a meritorious action: … [T]he Supreme Court should have granted that branch of the […]

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POLICE OFFICER DID NOT VIOLATE THE RECKLESS DISREGARD STANDARD BY MAKING A U-TURN IN RESPONSE TO A CALL FOR ASSISTANCE; THE STATE’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE WAS PROPERLY GRANTED (SECOND DEPT).

The Second Department determined the “reckless disregard” standard applied to a police making a u-turn. Plaintiff motorcyclist alleged he lost control of the motorcycle because he was forced to brake when the officer (Balletto) pulled out from the shoulder to make the turn. Believing it was safe to do so, the officer made the u-turn […]

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A STIPULATION OF DISCONTINUANCE OF THE 2008 FORECLOSURE ACTION DID NOT MENTION DE-ACCELERATION OF THE DEBT OR THE ACCEPTANCE OF FUTURE INSTALLMENT PAYMENTS; THEREFORE THE DEBT WAS NOT DE-ACCELERATED AND THE SUBSEQUENT FORECLOSURE ACTION WAS TIME-BARRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a stipulation of a discontinuance of the 2008 foreclosure action did not de-accelerate the debt. The foreclosure action was therefore time-barred: An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4]). With respect to a mortgage payable in installments, separate causes of […]

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ADMISSION OF A HEARSAY STATEMENT BY A BYSTANDER WHO TOLD A POLICE OFFICER DEFENDANT HAD RUN INTO A HOUSE WAS (HARMLESS) ERROR (FOURTH DEPT).

The Fourth Department determined it was (harmless) error to admit the hearsay statement attributed to a bystander who told a police officer the defendant had run into a house after a car chase: Defendant contends that County Court erred in allowing inadmissible hearsay testimony when the police officer was allowed to testify at trial that […]

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CPL 330.30 MOTION ALLEGING JUROR MISCONDUCT DURING DELIBERATIONS, I.E. CONDUCTING A REENACTMENT, SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING (FOURTH DEPT).

The Fourth Department, reversing County Court, determined the Criminal Procedure Law 330.30 motion alleging misconduct during jury deliberations should not have been denied without a hearing. The defendant was charged with menacing a police officer and whether the defendant heard the announcement that the people knocking on his door were deputy sheriffs was a critical […]

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