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THE RECORD IS SILENT ABOUT THE REASON FOR DEFENDANT’S PERIODIC ABSENCE FROM THE TRIAL; WHERE THERE IS NO EVIDENCE A DEFENDANT’S ABSENCE WAS DELIBERATE, CONDUCTING THE TRIAL IN DEFENDANT’S ABSENCE IS A “MODE OF PROCEEDINGS” ERROR REQUIRING REVERSAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction and ordering a new trial, determined that conducting the trial in the defendant’s absence was a “mode of proceedings” error which need not be preserved for appeal. If it is clear from the record that a defendant’s absence from the trial was deliberate, there is no error. But here […]

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ALTHOUGH DEFENDANT PLED GUILTY TO MANSLAUGHTER AND ATTEMPTED ASSAULT PURSUANT TO A PLEA AGREEMENT WITH A NEGOTIATED SENTENCE, THE CONSECUTIVE SENTENCES WERE ILLEGAL; THERE WAS NO PROOF IN THE PLEA ALLOCUTION THAT THE DEFENDANT FIRED MORE THAN ONE BULLET (THERE WAS A SECOND SHOOTER) (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the 25-year sentence for manslaughter and the 10-year sentence for attempted assault, which, pursuant to a plea agreement with a negotiated sentence, were imposed consecutively, must be served concurrently. Because the defendant pled guilty, the only relevant evidence is in the plea allocution. The majority concluded the […]

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THERE ARE TWO STATUTORY PROCEDURES FOR APPROVING AN EXTENSION OF A SEWER DISTRICT; HERE THE REQUEST FOR AN EXTENSION WAS INITIATED UNDER ONE STATUTORY PROCEDURE, WHICH DOES NOT REQUIRE A REFERENDUM, BUT THE TOWN APPLIED THE OTHER STATUTORY PROCEDURE, WHICH DOES REQUIRE A REFERENDUM; THAT WAS ERROR (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the town failed to follow the correct statutory procedure for approval of an extension of a sewer district to include petitioner’s commercial development  There are two statutory procedures. The Town Law Article 12 procedure applies when a petition is filed by an owner of taxable property (like the […]

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ALTHOUGH FATHER IS INCARCERATED FOR ASSAULTING MOTHER WHEN SHE WAS SEVEN MONTHS PREGNANT, FATHER IS ENTITLED TO A HEARING ON WHETHER VISITATION WITH THE CHILD, WHICH NEED NOT INCLUDE CONTACT VISITATION, IS IN THE BEST INTERESTS OF THE CHILD; IT IS THE MOTHER’S BURDEN TO DEMONSTRATE VISITATION WOULD BE HARMFUL (THIRD DEPT).

The Third Department, reversing (modifying) Family Court, determined the incarcerated father was entitled to a hearing on whether visitation would be in the best interests of the child. Father was convicted of assaulting mother when mother was seven months pregnant. Family Court had granted mother’s summary judgment motion precluding father’s contact until the child turns […]

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THE TRIAL PROOF COULD BE INTERPRETED TO SUPPORT AN INTENT TO CAUSE SERIOUS PHYSICAL INJURY (ASSAULT SECOND) OR AN INTENT TO CAUSE PHYSICAL INJURY (ASSAULT THIRD); DEFENDANT’S REQUEST THAT THE JURY BE INSTRUCTED ON ASSAULT THIRD AS A LESSER INCLUDED OFFENSE SHOULD HAVE BEEN GRANTED; NEW TRIAL ORDERED ON THAT COUNT (THIRD DEPT).

The Third Department, ordering an new trial on the assault second count, determined defendant’s request that the jury be instructed on assault third as a lesser included offense should have been granted: … County Court erred in refusing [defendant’s]  request to charge assault in the third degree as a lesser included offense of assault in […]

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DEFENDANT IN THIS SLIP AND FALL CASE OFFERED NO EVIDENCE THAT THE AREA OF THE FALL WAS CLEANED OR INSPECTED CLOSE IN TIME TO THE FALL; THEREFORE THE DEFENDANT DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE SLIPPERY CONDITION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court in this slip and fall case, determined defendant did not not demonstrate a lack of constructive notice of the slippery substance because no proof the area was inspected or cleaned close in time to the fall was presented: The defendant … failed to establish … that it lacked actual […]

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“LAW OFFICE FAILURE” WAS NOT A REASONABLE EXCUSE FOR FAILING TO ANSWER THE COMPLAINT; DEFENDANT’S MOTION TO COMPEL THE PLAINTIFF TO ACCEPT A LATE ANSWER SHOULD NOT HAVE BEEN GRANTED (SECOND D

The Second Department, reversing Supreme Court, determined plaintiff did not present a reasonable excuse for failing to timely answer the complaint. Therefore, plaintiff’s motion to compel defendant to accept the late answer should not have been granted: A defendant seeking to compel the plaintiff to accept a late answer “must show both a reasonable excuse […]

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DEFENDANT WAS NOT GIVEN A REASONABLE OPPORTUNITY TO EXPLAIN HIS REQUEST TO WITHDRAW HIS GUILTY PLEA; MATTER REMITTED FOR THAT PURPOSE AND A REPORT TO THE APPELLATE COURT (SECOND DEPT).

The Second Department, remitting the matter and holding the appeal, determined the judge should have conducted an inquiry when defendant stated he wished to withdraw his guilty plea. The defendant did not have a reasonable opportunity to present his reasons: “When a defendant moves to withdraw a guilty plea, the nature and extent of the […]

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WHETHER FAMILY COURT HAS SUBJECT MATTER JURISDICTION OVER THIS FAMILY OFFENSE PROCEEDING DEPENDS ON WHETHER THERE EXISTS AN “INTIMATE RELATIONSHIP” BETWEEN THE CHILD AND THE RESPONDENT, THE PARAMOUR OF PETITIONER’S FORMER HUSBAND; BEFORE THE COURT CAN RULE ON THE JURISDICTION ISSUE A HEARING TO DETERMINE WHETHER THERE IS AN “INTIMATE RELATIONSHIP” IS REQUIRED; MATTER REMITTED (SECOND DEPT).

The Second Department, reversing Family Court, determined Family Court should have held a hearing before ruling it did not have subject matter jurisdiction in this family offense proceeding. The proceeding was against respondent, the paramour of petitioner’s former husband. Whether Family Court has jurisdiction depends on whether the respondent is or has been in an […]

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GRANDFATHER DEMONSTRATED “EXTRAORDINARY CIRCUMSTANCES” AFFORDING HIM STANDING TO PETITION FOR CUSTODY OF THE CHILD (SECOND DEPT).

The Second Department, reversing Family Court, determined the maternal grandfather demonstrated extraordinary circumstances and therefore had standing to seek custody of the child. The matter was remitted for a custody award based on the best interests of the child: “Pursuant to Domestic Relations Law § 72(2)(a), a grandparent has standing to seek custody of a […]

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