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Entries by Bruce Freeman

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DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED, ISSUE THAT WAS ADDRESSED BY THE DEFENDANT IN ITS REPLY PAPERS AND THE JUDGE IS PRESERVED FOR APPEAL, COMPLIANCE WITH REGULATIONS IS NOT DISPOSITIVE ON THE ISSUE OF NEGLIGENCE (FOURTH DEPT). ​

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should not have been granted. Plaintiff tripped over a wheelchair scale in a hallway of defendant’s nursing home. The Fourth Department noted that the issue was preserved for appeal despite the absence from the record of the […]

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PRIVATE COLLEGE DID NOT ADHERE TO ITS PUBLISHED RULES AND GUIDELINES AND FAILED TO INFORM PETITIONER-STUDENT OF HIS RIGHT TO SUBMIT QUESTIONS TO HIS ACCUSER, DETERMINATION THAT PETITIONER VIOLATED THE COLLEGE SEXUAL MISCONDUCT POLICY ANNULLED (FOURTH DEPT).

The Fourth Department, reversing the Supreme Court, determined petitioner-student was not afforded his due process rights in proceedings brought by a private college (Hamilton) stemming from allegations petitioner had violated the college’s sexual misconduct policy (Policy). Petitioner was not informed of his right to submit questions to his accuser: Here, the parties agree that respondents […]

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2003 DEPRAVED INDIFFERENCE MURDER CONVICTION REVERSED, THE CASE WAS ON APPEAL WHEN THE COURT OF APPEALS DETERMINED AN INTENTIONAL MURDER OF A SINGLE VICTIM WITH A WEAPON DOES NOT MEET THE CRITERIA FOR DEPRAVED INDIFFERENCE MURDER (FOURTH DEPT).

The Fourth Department determined a 2003 murder depraved indifference murder conviction must be reversed because the case was on appeal when the law of depraved indifference murder was clarified to exclude the intentional murder of a single victim with a weapon: … [W]e conclude that the evidence establishes that defendant accosted decedent, who was leaving […]

RE: A JUVENILE OFFENDER, THE SURCHARGE AND CRIME VICTIM ASSISTANCE FEE SHOULD NOT HAVE BEEN ASSESSED, AND THE CONSECUTIVE 2 TO 6 SENTENCES ARE ILLEGAL (FOURTH DEPT).

The Fourth Department determined, because defendant is a juvenile offender, the surcharge and crime victim assistance fee must be vacated and the two consecutive 2 to 6 year sentences were illegal: The People correctly concede in each appeal that the surcharge and crime victim assistance fee must be vacated because defendant is a juvenile offender […]

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REQUEST TO SUBMIT CPCS SEVENTH DEGREE TO THE JURY AS A LESSER INCLUDED OFFENSE OF CPCS FIFTH DEGREE SHOULD HAVE BEEN GRANTED, NEW TRIAL ORDERED ON THAT COUNT (FOURTH DEPT).

The Fourth Department determined the request to submit Criminal Possession of a Controlled Substance (CPCS) seventh degree to the jury as a lesser included offense of COCS fifth degree should have been granted: We agree with defendant, however, that the court erred in refusing to submit CPCS in the seventh degree (Penal Law § 220.03) […]

THE FACT THAT THE BENCH WARRANT WAS BASED UPON A CHARGE FOR WHICH THE STATUTORY SPEEDY TRIAL PERIOD HAD EXPIRED DID NOT INVALIDATE THE EXECUTION OF THE WARRANT AND THE RESULTING ARREST FOR RESISTING ARREST (FOURTH DEPT).

The Fourth Department noted that the fact that the statutory speedy trial period had expired at the time the bench warrant was executed did not invalidate the arrest for resisting arrest: [I]t is undisputed that the warrant was facially valid, and it necessarily follows that the officer was authorized to arrest defendant for purposes of […]

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PETITIONER IS NOT ENTITLED TO SURPLUS PROCEEDS AFTER A TAX FORECLOSURE SALE (FOURTH DEPT).

The Fourth Department determined petitioner was not entitled to the surplus proceeds after a tax foreclosure sale: We reject petitioners’ contention that they have a right to the surplus proceeds of the foreclosure sale. As respondent correctly contends, petitioners’ application for surplus proceeds was improperly predicated upon provisions of RPAPL article 13 that apply to […]

THE STATUTE WHICH CRIMINALIZES AN ASSAULT ON A PERSON 65 OR OLDER BY A PERSON MORE THAN TEN YEARS YOUNGER DOES NOT REQUIRE PROOF THE ASSAILANT KNEW THE AGE OF THE VICTIM (FOURTH DEPT).

The Fourth Department determined that the statute which criminalizes a younger person’s causing injury to a person 65 or older does not require proof that attacker know the victim is 65 or older: Defendant appeals from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05 [12]). […]

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DEFENDANT DID NOT WAIVE HIS RIGHT TO BE PRESENT AT A SIDEBAR DISCUSSION WITH A PROSPECTIVE JUROR; UPON RETRIAL AN ADULT WITNESS SHOULD NOT TESTIFY WHILE ACCOMPANIED BY A THERAPY DOG (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction, determined defendant did not waive his right to be present when a prospective juror told the judge and attorneys that she was not sure she had completely answered a voir dire question. Defendant was not in the courtroom when the judge asked defense counsel if he wanted his client […]

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THE RECORD WAS INSUFFICIENT TO ALLOW THE CONCLUSION THAT DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, A POST-TRIAL EVIDENTIARY PROCEEDING MIGHT ANSWER THE QUESTIONS LEFT OPEN BY THE TRIAL RECORD; ANY ERROR IN ADMITTING DNA EVIDENCE WHERE CONSENT, NOT IDENTITY, IS THE ISSUE IS HARMLESS (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, over a dissent, determined (1) the record was insufficient to demonstrate defendant did not receive effective assistance of counsel and (2) because the DNA evidence was not offered to identify the defendant any error in introducing it was harmless. The defendant argued that defense […]

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