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Entries by Bruce Freeman

INFORMATION CHARGING OBSTRUCTING GOVERNMENT ADMINISTRATION DID NOT INCLUDE FACTUAL ALLEGATIONS DESCRIBING THE OFFICIAL FUNCTION WHICH WAS OBSTRUCTED AND WAS THEREFORE JURISDICTIONALLY DEFECTIVE (CT APP).

The Court of Appeals, reversing the Appellate Term, determined the accusatory information (information) charging defendant with obstructing government administration was jurisidictionally defective because it did not include factual allegations of the official function alleged to have been obstructed: Defendant was convicted of obstructing governmental administration in the second degree for backing his vehicle away from police […]

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THE APPEAL OF THE DENIAL OF PETITIONER’S REQUEST FOR AN ADJOURNMENT TO OBTAIN COUNSEL WAS NOT MOOT, DESPITE THE FACT THE TRIAL WAS HELD AND COMPLETED IN PETITIONER’S ABSENCE; THE ADJOURNMENT SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Scheinkman, reversing Surrogate’s Court, determined petitioner’s motion for an adjournment to obtain new counsel should have been granted and the appeal of the denial of an adjournment was not moot. The matter was before Surrogate’s Court for an accounting in the estate of Oleg Cassini, who […]

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INCREASES IN PAY TO PORT AUTHORITY EXECUTIVE EMPLOYEES, AIMED AT RETAINING THOSE EMPLOYEES IN THE WAKE OF THE 9-11 ATTACKS, SHOULD NOT BE TREATED AS SALARY IN THE CALCULATION OF THOSE EMPLOYEES’ RETIREMENT BENEFITS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Fahey, reversing the Appellate Division, determined certain increases in pay to executive employees of the Port Authority, aimed at retaining those employees in the wake of the 9-11 attacks, should not be treated as salary in the calculation of those employees’ retirement benefits. ” … […]

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DEFENDANT MAY NOT APPEAL OR COLLATERALLY ATTACK AN “ILLEGALLY LENIENT” SENTENCE BECAUSE THE SENTENCE DID NOT ADVERSELY AFFECT THE DEFENDANT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined that the defendant may not appeal from an “illegally lenient” sentence because the sentence did not adversely affect the defendant. The defendant was attempting to have prior sentences declared illegal to avoid a subsequent “persistent felony offender” classification. Defendant had used aliases and had […]

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JUDGE PROPERLY SET ASIDE THE VERDICT AWARDING $0 FOR FUTURE PAIN AND SUFFERING IN THIS LABOR LAW 240 (1) ACTION DESPITE PLAINTIFF’S FAILURE TO OBJECT TO THE VERDICT AS INCONSISTENT (FIRST DEPT).

The First Department determined Supreme Court properly set aside the verdict awarding $0 for pain and suffering in this Labor Law 240 (1) action, despite plaintiff’s failure to object to the verdict as inconsistent: … [P]laintiff’s failure to object to the jury’s award of $0 for both past and future pain and suffering as inconsistent […]

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CONTINUOUS TREATMENT DOCTRINE NOT AFFECTED BY A YEAR AND THREE MONTH GAP IN TREATMENT, DEFENDANTS’ SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED IN THIS MEDICAL MALPRACTICE ACTION (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this medical malpractice action should not have been granted. Although the alleged malpractice (the failure to follow up on a detection of a mass) occurred in 2006, the continuous treatment doctrine tolled the statute of limitations. A year and three month gap in […]

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ACCELERATION OF A DEBT DOES NOT AFFECT THOSE INSTALLMENT PAYMENTS DUE MORE THAN SIX YEARS BEFORE THE ACTION ON THE NOTES WAS COMMENCED, ACTION ON THOSE PAYMENTS IS TIME-BARRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined that installment payments due prior to six years before the action on the notes could not be recovered despite the allegation that the debt had been accelerated: Acceleration causes those future installment payments that are not yet due and payable to become immediately due and payable. It enables […]

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SUPREME COURT PROPERLY FOUND THAT THE OFFICER DID NOT HAVE SUFFICIENT GROUNDS TO STOP DEFENDANT ON THE STREET, DETAIN HIM, SEARCH HIS BAG AND TRANSPORT HIM TO THE BURGLARY SCENE FOR A SHOWUP IDENTIFICATION (FOURTH DEPT).

The Fourth Department affirmed Supreme Court’s ruling that the officer did not have a sufficient basis for detaining the defendant on the street, searching defendant’s bag and transporting defendant to the burglary scene: The evidence at the suppression hearing established that the officer who initiated the encounter with defendant was responding to a radio dispatch […]

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SUPREME COURT DID NOT RULE ON DEFENDANT’S MOTION FOR A TRIAL ORDER OF DISMISSAL, MATTER REMITTED FOR A RULING (FOURTH DEPT).

The Fourth Department, remitting the matter to Supreme Court, noted that Supreme Court did not rule on defendant’s motion for a trial order of dismissal: Defendant … contends that the evidence is legally insufficient to support the conviction with respect to the weapon possession counts and that the court thus erred in denying his motion […]

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