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Entries by Bruce Freeman

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SUPERIOR COURT INFORMATION IS JURISDICTIONALLY DEFECTIVE FOR FAILURE TO INCLUDE THE TIME OF THE OFFENSE, ISSUE NEED NOT BE PRESERVED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the superior court information (SCI) to which defendant pled guilty was jurisdictionally defective because it did not include the time of the offense. The error survives the guilty plea and waiver of appeal and is not subject to the preservation requirement: … [T]he People concede and we agree […]

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DEFENDANT’S STATEMENTS AT SENTENCING RAISED THE INTOXICATION DEFENSE REQUIRING FURTHER INQUIRY BY THE COURT, ISSUE CONSIDERED AS AN EXCEPTION TO THE PRESERVATION REQUIREMENT, CONVICTION BY GUILTY PLEA REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea,  determined defendant’s statements at sentencing, indicating that he was intoxicated at the time he committed the crimes (assault), required further inquiry by the court. The Third Department noted that the issue constitutes an exception to the preservation requirement: The statements made by defendant at sentencing, which […]

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PUBLIC DEFENDER’S OFFICE REPRESENTED DEFENDANT AND THE CONFIDENTIAL INFORMANT, CONVICTION REVERSED (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined that the public defender’s office represented both the defendant and the confidential informant (CI) creating a conflict of interest. Although the issue was apparently not preserved, the appellate court considered the issue in the interest of justice: “A defendant is denied the right to effective assistance of counsel […]

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THE CITY’S STUDIES OF THE INTERSECTION WHERE INFANT PLAINTIFF WAS STRUCK BY A CAR WERE DONE IN THE SUMMER WHEN NO SCHOOL CHILDREN USED THE INTERSECTION, THEREFORE THE CITY WAS NOT ENTITLED TO SUMMARY JUDGMENT BASED ON THE DOCTRINE OF QUALIFIED IMMUNITY, THE STUDIES HAD CONCLUDED NO TRAFFIC CONTROL DEVICE WAS NECESSARY, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the city’s motion for summary judgment in this intersection pedestrian traffic accident case should not have been granted. Infant plaintiff, the eight years old, attempted to cross the street, Avenue J, to get on his school bus when he was struck by a vehicle. The city submitted […]

PLAINTIFF HOMEOWNER WAS NOT ENTITLED TO PAYMENTS MADE TO AN UNLICENSED HOME IMPROVEMENT CONTRACTOR FOR WORK PERFORMED SOLELY ON THE GROUND THAT THE CONTRACTOR WAS UNLICENSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was not entitled to the return of payments made to defendant unlicensed contractor for work performed. Plaintiff’s motion for summary judgment on that cause of action should not have been granted: Although an unlicensed contractor may not enforce a home improvement contract against a homeowner or seek recovery […]

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DEFENDANT’S APPLICATION FOR A DOWNWARD DEPARTURE SHOULD HAVE BEEN CONSIDERED, INSTEAD THE APPLICATION WAS DISMISSED AS ‘PREMATURE,’ MATTER REMITTED (SECOND DEPT).

The Second Department Supreme Court should have considered defendant’a application for a downward departure and remitted the matter: The Supreme Court is required to make a determination with respect to a defendant’s risk level 30 calendar days prior to discharge, parole, or release (see Correction Law § 168-n). As part of its determination with respect […]

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COUNTY COURT ABUSED ITS DISCRETION BY REFUSING TO ALLOW DEFENDANT TO SUBMIT A LATE NOTICE OF HIS INTENT TO PRESENT PSYCHIATRIC EVIDENCE, CONVICTION REVERSED (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined County Court abused its discretion by not allowing defendant to serve a late notice of his intent to offer psychiatric evidence: “Psychiatric evidence is not admissible upon a trial unless the defendant serves upon the people and files with the court a written notice of his intention to […]

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DEFENDANT’S STATEMENT TO HIS MOTHER, ON THE PHONE, ABOUT NEEDING THE ASSISTANCE OF AN ATTORNEY SHOULD NOT HAVE BEEN ADMITTED IN EVIDENCE, ERROR WAS HARMLESS HOWEVER (SECOND DEPT).

The Second Department determined a statement defendant made to his mother about needing the assistance of an attorney should not have been admitted. The error was deemed harmless however: We agree with the defendant that the Supreme Court should not have admitted into evidence a statement the defendant made to his mother, during a recorded […]

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CHILD CONCEIVED WITH AN EGG FROM AN ANONYMOUS DONOR AND CARRIED BY A GESTATIONAL SURROGATE PURSUANT TO AN UNPAID SURROGACY CONTRACT MAY BE ADOPTED BY THE BIOLOGICAL FATHER (SECOND DEPT).

The Second Department, reversing Family Court, determined the biological father of a child conceived with an egg from an anonymous donor and carried by a gestational surrogate can adopt the child. Family Court had held that the unpaid surrogacy contract was against public policy and should not be legitimized by adoption. Family Court also held […]

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HARDSHIP WAIVER TO ALLOW CONSTRUCTION OF A SINGLE FAMILY HOME IN THE CORE PRESERVATION AREA OF THE LONG ISLAND CENTRAL PINES BARRENS PROPERLY DENIED, ACCOMPANYING ACTION FOR DECLARATORY JUDGMENT SHOULD NOT HAVE BEEN SUMMARILY DENIED, SUA SPONTE, BY THE JUDGE BECAUSE THERE WAS NO REQUEST FOR THAT RELIEF (SECOND DEPT).

The Second Department, modifying Supreme Court, determined that the Article 78 petition for a hardship waiver to allow petitioner to build a single family residence on property within the core preservation area of the Long Island Central Pines Barrens was properly denied. However, the accompanying declaratory judgment action (alleging the denial of the waiver was […]

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