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Entries by Bruce Freeman

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THE DENIAL OF DEFENDANT’S MOTION TO LIMIT THE EXPERT TESTIMONY PLAINTIFF COULD OFFER AT TRIAL DID NOT LIMIT THE ISSUES TO BE TRIED; THEREFORE ANY APPEAL MUST AWAIT THE CONCLUSION OF THE TRIAL; APPEAL DISMISSED (THIRD DEPT).

The Third Department determined defendant doctor could not appeal the denial of defendant’s motion to limit the expert testimony which plaintiff could offer at trial in this medical malpractice action. The motion court’s ruling did not limit the issues to be tried. Therefore an appeal must be brought after trial: It is well settled that […]

PLAINTIFF’S ACTION AGAINST DEFENDANT FOR LETTING PLAINTIFF USE A SCISSORS LIFT SURVIVED SUMMARY JUDGMENT; PLAINTIFF ALLEGED DEFENDANT NEGLIGENTLY ENTRUSTED THE LIFT TO HIM, KNOWING HE DID NOT KNOW HOW TO OPERATE IT; PLAINTIFF WAS INJURED WHEN THE LIFT TIPPED OVER AND PLAINTIFF FELL 25 FEET (THIRD DEPT).

The Third Department determined there was a question of fact whether defendant building contractor negligently entrusted a scissors lift to plaintiff, who was injured when the lift tipped over: Given the testimony regarding plaintiff’s alleged lack of experience operating the subject scissor lift, the alleged observations by defendant’s employees of plaintiff’s operation thereof, Reagles’ [defendant’s project superintendent’s] […]

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SPECIAL PROSECUTOR DID NOT HAVE THE AUTHORITY TO PROSECUTE A CRIMINAL OFFENSE ON BEHALF OF THE JUSTICE CENTER FOR PROTECTION OF PEOPLE WITH SPECIAL NEEDS; THE DISTRICT ATTORNEY DID NOT KNOWINGLY CONSENT AND DID NOT MAINTAIN CONTROL OVER THE PROSECUTION; INDICTMENT DISMISSED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Rumsey, determined that the special prosecutor did not have the authority to prosecute a substance abuse counselor who allegedly sexually abused a 16-year-old patient. The special prosecutor was from the Justice Center for Protection of People with Special Needs. Because the special prosecutor did not have […]

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EVIDENCE PROPERLY ADMITTED AT TRIAL PURSUANT TO THE CRIME-FRAUD EXCEPTION TO THE ATTORNEY-CLIENT PRIVILEGE, THE SEARCH WARRANT WAS EXECUTED AT AND THE EVIDENCE WAS SEIZED FROM THE SARATOGA COUNTY PUBLIC DEFENDER’S OFFICE (THIRD DEPT).

The Third Department, in affirming defendant’s predatory sexual assault against a child and child pornography convictions, noted that evidence was seized from the Saratoga County Public Defender’s Office and the evidence was admissible at trial pursuant to the crime-fraud exception to the attorney-client privilege. The facts are not described in any detail: Defendant … contends that […]

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THE PEOPLE DID NOT DEMONSTRATE THE SEARCH OF DEFENDANT’S VEHICLE WAS A VALID INVENTORY SEARCH; THE RECORD SUPPORTED COUNTY COURT’S CONCLUSION THE INVENTORY SEARCH WAS A ‘PRETEXT’ FOR A SEARCH FOR INCRIMINATING EVIDENCE (THIRD DEPT).

The Third Department, in this appeal by the People, determined that the search of defendant’s vehicle was not a valid inventory search and the related suppression motion was properly granted: Although not fatal to the establishment of a valid inventory search … , the People did not admit the relevant tow and impound policy into […]

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ARTICLE 78 ACTION SEEKING TO PROHIBIT THE TRIAL JUDGE IN A CRIMINAL CASE FROM EXCLUDING TESTIMONY AS PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE DISMISSED AS INAPPROPRIATE; MATTER CONSIDERED AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (THIRD DEPT).

The Third Department determined the Article 78 proceeding brought by the district attorney against the trial judge in a criminal case seeking prohibition should have been dismissed. The trial judge had ruled that the conversations between an attorney and the defendant at the scene of the crime were protected by attorney-client privilege. The Article 78 action […]

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EXCESSIVE INTERFERENCE BY THE TRIAL JUDGE DEPRIVED DEFENDANT OF A FAIR TRIAL; ISSUE CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined the judge’s intervention usurped the roles of the attorneys and deprived defendant of a fair trial. Defense counsel did not object but the issue was considered on appeal in the interest of justice: “[W]hile a trial judge may intervene in a trial to clarify confusing testimony and facilitate […]

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NEGLIGENT SUPERVISION WAS NOT THE PROXIMATE CAUSE OF PLAINTIFF’S INJURIES IN THIS STUDENT-PUSHES-STUDENT CASE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the school district’s motion for summary judgment in this negligent supervision, student-pushed-by-student, case should have been granted. Negligent supervision was not the proximate cause of the injury: … [T]he infant plaintiff, a kindergarten student at a school in the defendant … School District … , allegedly was injured […]

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STATE DID NOT DEMONSTRATE APPELLANT SEX OFFENDER WAS UNABLE TO CONTROL HIS BEHAVIOR, AS OPPOSED TO HAVING DIFFICULTY CONTROLLING HIS BEHAVIOR; THEREFORE RELEASE WITH STRICT SUPERVISION, AS OPPOSED TO CIVIL COMMITMENT, WAS ORDERED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the expert testimony offered by the State did not demonstrate the appellant sex offender was unable to control his behavior, requiring civil commitment, as opposed to having difficulty controlling his behavior, requiring strict supervision. Therefore appellant should be released under a regimen of strict and intensive supervision and treatment: […]

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WITNESS DID NOT IDENTIFY THE DEFENDANT AT A LINEUP, SAYING ONLY SHE WAS ‘LEANING TOWARD’ CHOOSING THE DEFENDANT, THAT TESTIMONY WAS INADMISSIBLE UNDER CPL 60.25; PROSECUTOR’S REMARKS IN SUMMATION HARSHLY CRITICIZED (SECOND DEPT).

The Second Department, reversing defendant’s conviction in the interest of justice, determined a witness’s testimony about a lineup identification procedure in which the witness indicated only she was “leaning toward” choosing the defendant was inadmissible. The Second Department further criticized the prosecutor’s summation: … [T]he foundational requirements of CPL 60.25 were not met …. CPL […]

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