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THE PEOPLE DID NOT PROVE THE POLICE OFFICER DEFENDANT PUNCHED WAS ENGAGED IN A LAWFUL DUTY AT THE TIME OF THE ASSAULT, THE PEOPLE ARE HELD TO THE ‘HEAVIER BURDEN’ IN THE DEFINITION OF ‘LAWFUL DUTY’ PROVIDED TO THE JURY WITHOUT OBJECTION, DEFENDANT’S ASSAULT CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE (SECOND DEPT).

The Second Department reversed defendant’s assault conviction. Defendant and his brother were sitting on an elevated subway grate when they were approached by two police officers. Defendant’s brother became angry, telling one of the officers to leave him alone and yelling. Defendant restrained his brother, telling him to calm down. At some point defendant suddenly punched […]

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THE ROBBERY VICTIM’S IDENTIFICATION OF DEFENDANT IN A PHOTO ARRAY AFTER THE POLICE HAD SHOWN THE ROBBERY VICTIM A CELL PHONE PHOTO DEPICTING THE DEFENDANT USING A TASER ON SOMEONE SHOULD HAVE BEEN SUPPRESSED, THE ROBBER HAD THREATENED THE VICTIM WITH A TASER (SECOND DEPT).

The Second Department, reversing defendant’s conviction for one of two robberies charged in the indictment, determined the pretrial identification of the defendant by the robbery victim, Fisher, should have been suppressed. The police were given a cell phone found at the robbery scene. The robber had used a Taser in the Fisher robbery. In the […]

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DEFENDANTS DID NOT SHOW THERE WAS A COMPELLING NEED FOR DISCOVERY OF ‘ALCOHOL/DRUG TREATMENT/MENTAL HEALTH INFORMATION/HIV-RELATED INFORMATION’ IN THIS SLIP AND FALL CASE, DISCOVERY REQUEST SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the defendants request for discovery of “Alcohol/Drug Treatment/Mental Health Information/HIV-Related Information” in this slip and fall case was not supported by evidence of a compelling need: “[A] party must provide duly executed and acknowledged written authorizations for the release of pertinent medical records under the liberal […]

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FATHER SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO BE HEARD BEFORE THE SUSPENSION OF HIS COMMITMENT TO JAIL FOR NONPAYMENT OF CHILD SUPPORT WAS REVOKED; THE ISSUE IS APPEALABLE EVEN THOUGH FATHER HAS SERVED HIS TERM OF INCARCERATION (SECOND DEPT).

The Second Department, reversing Family Court, determined father should have been given the opportunity to be heard and present witnesses on the issue of whether good cause existed for the revocation of the suspension of his commitment to jail for nonpayment of child support. The court noted that the matter was not academic, even though […]

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MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF MOTHER’S NEGLECT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, determined petitioner’s motion for summary judgment against mother on the issue of neglect should have been denied: “[I]n an appropriate case, the Family Court may enter a finding of neglect on a summary judgment motion in lieu of holding a fact-finding hearing upon the petitioner’s prima facie showing of […]

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MOTHER’S MOTION TO VACATE A FACT-FINDING OF NEGLECT WITHOUT ADMISSION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s motion to vacate a neglect fact-finding without admission: … [T]he mother moved pursuant to Family Court Act § 1061 to vacate so much of the order of fact-finding and disposition as, upon her consent to the entry of an order of fact-finding without admission pursuant to Family […]

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PETITIONER’S APPLICATION TO CHANGE THE DESIGNATION OF HIS RACE/NATIONALITY PROPERLY DENIED; EX PARTE ORDERS ARE NOT APPEALABLE, NOTICES OF APPEAL TREATED AS APPLICATIONS FOR REVIEW PURSUANT TO CPLR 5704 (a) (SECOND DEPT).

The Second Department determined petitioner’s application to change his race/nationality from “black/African American” to “Moor/Americas Aboriginal” was properly denied. The court noted that an ex parte order is not appealable but deemed the notices of appeal applications pursuant to CPLR 5704 (a): “An ex parte order is not appealable … . However, under the circumstances […]

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NO SHOWING THAT THE AMBULANCE SIREN OR EMERGENCY LIGHTS WERE IN USE WHEN THE INTERSECTION COLLISION OCCURRED, THEREFORE THERE WAS NO SHOWING THE RECKLESS DISREGARD STANDARD FOR EMERGENCY VEHICLES APPLIED, THE MUNICIPAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the municipal defendants’ motion for summary judgment in this ambulance traffic accident case should have been denied. The municipal defendants did not demonstrate that the reckless disregard standard for emergency vehicles applied because they did not present evidence the ambulance siren or emergency lights were in use: … […]

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PLAINTIFF BANK NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE IT FAILED TO DEMONSTRATE COMPLIANCE WITH RPAPL 1304, A CONDITION PRECEDENT; DEFENDANT NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE HE DID NOT DEMONSTRATE THE BANK FAILED TO COMPLY WITH RPAPL 1304 (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined plaintiff bank should not have been awarded summary judgment because it did not demonstrate compliance with RPAPL 1304, but defendant was not entitled to summary judgment on that ground because defendant did not demonstrate RPAPL 1304 was not complied with: … [T]he evidence submitted in support of […]

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PETITIONER WAS 14 IN 1990 WHEN HE MURDERED A CLASSMATE AND THE CHILD SHE WAS BABYSITTING, THE PAROLE BOARD PROPERLY DENIED PAROLE FOR THE FIFTH TIME, THE RECORD DEMONSTRATES THE BOARD CONSIDERED ALL THE RELEVANT FACTORS AND DID NOT BASE THEIR DECISION SOLELY ON THE SERIOUSNESS OF THE OFFENSE (SECOND DEPT).

The Second Department determined the denial of parole to petitioner, who, in 1990, had killed a 15-year-old classmate, and the 17-month-old child she was babysitting, was not irrational. Although petitioner had made strong rehabilitative and educational efforts, the parole board properly considered all the relevant factors and did not make their decision on the basis of […]

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