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Entries by Bruce Freeman

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DEFENSE COUNSEL ALLOWED EVIDENCE PRECLUDED BY A SANDOVAL RULING TO COME IN, AND DID NOT OBJECT TO HEARSAY WHICH REFUTED DEFENDANT’S ALIBI; DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction and ordering a new trial, determined defense counsel was ineffective for allowing the introduction of evidence which violated a Sandoval ruling. The court ruled the People could not introduce evidence of defendant’s rape conviction. But the People elicited testimony from defendant’s parole officer (Kellett) indicating defendant was a sex […]

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DEFENSE COUNSEL VOUCHED FOR THE CREDIBILITY OF THE VICTIM, DID NOT OBJECT WHEN THE PROSECUTOR VOUCHED FOR THE CREDIBILITY OF THE VICTIM, AND ALLOWED EVIDENCE OF DEFENDANT’S PRIOR CRIMES TO COME IN DESPITE A SANDOVAL RULING KEEPING IT OUT; NEW TRIAL ORDERED (THIRD DEPT).

The Third Department, reversing defendant’s conviction in this sex-offense case and ordering a new trial, determined defense counsel did not provide effective assistance. Defense counsel vouched for the credibility of the victim and allowed evidence of defendant’s prior crimes to come in, despite a Sandoval ruling keeping it out: … [D]uring counsel’s opening statement, he […]

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ALTHOUGH THE ISSUE SHOULD HAVE BEEN RAISED IN A DIRECT APPEAL, AND DESPITE DEFENDANT’S FAILURE TO RAISE THE WINNING ARGUMENT IN THE MOTION TO VACATE THE CONVICTION, THE THIRD DEPARTMENT GRANTED DEFENDANTS REQUEST TO REMOVE THE SEX OFFENDER CLASSIFICATION FROM HIS SENTENCE; THE OFFENSE OF WHICH DEFENDANT WAS CONVICTED IS NOT A REGISTRABLE OFFENSE (THIRD DEPT). ​

The Third Department, vacating defendant’s judgment of conviction and reinstating it without the sex-offender certification, determined the offense of which defendant was convicted, burglary third degree as a sexually motivated felony, is not a registrable offense under the Correction Law. The court noted that a sex-offender certification is part of the sentence and therefore should […]

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ISSUING A RULING BEFORE FATHER COMPLETED HIS TESTIMONY IN THIS CUSTODY PROCEEDING DEPRIVED THE PARTIES OF DUE PROCESS OF LAW (THIRD DEPT).

The Third Department, reversing Family Court, determined the judge’s issuing a ruling awarding custody to father before father’s direct testimony had been completed violated due process: The parties, as well as the attorney for the child, share the view that Family Court improperly ended the hearing before its completion, and we agree. At a hearing […]

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THE NYS DEPARTMENT OF HEALTH’S CLARIFICATION OF BILLING PRACTICES FOR PHYSICIANS WHO DISPENSE PRESCRIPTION DRUGS UNDER THE MEDICAID PROGRAM IS VALID; THE CLARIFICATION IS NOT A “RULE” AND IS NOT VOID FOR VAGUENESS (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, determined a clarification issued by the respondent NYS Department of Health, was valid, was not a rule, and was not void for vagueness. The clarification concerned the billing practices for physicians who dispense prescription drugs: As it regularly does, respondent [NYS Department of Health] took […]

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PLAINTIFF’S WORKPLACE GENDER-DISCRIMINATION CASE SHOULD NOT HAVE BEEN DISMISSED (THIRD DEPT).

The Third Department, reversing Supreme Court, in a necessarily fact-specific decision, determined plaintiff’s employment-discrimination suit should not have been dismissed: To establish a claim for gender discrimination under the Human Rights Law, a plaintiff must “show (1) that he or she was a member of a protected class, (2) that he or she suffered an […]

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THE SOCIAL SERVICES LAW PROHIBITS THE RELEASE OF THE NAMES AND ADDRESSES OF PERSONS RECEIVING PUBLIC ASSISTANCE; THEREFORE THE FOIL REQUEST FOR THE ADDRESSES OF HOMELESS SHELTERS SHOULD HAVE BEEN DENIED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the FOIL request for the addresses of homeless shelters should not have been granted. Social Services Law section 136(1) provides that “[t]he names or addresses of persons applying for or receiving public assistance and care shall not be included in any published report or printed in any newspaper” […]

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THERE IS A QUESTION OF FACT WHETHER DECEDENT’S STATE UNIVERSITY OWED DECEDENT A DUTY TO WARN HIM OF THE HOSTILITY HARBORED BY ANOTHER STUDENT WHO ULTIMATELY MURDERED DECEDENT (THIRD DEPT).

The Third Department, reversing the Court of Claims, in a full-fledged opinion by Justice Lynch, determined there exists a question of fact whether decedent’s university (Binghamton) owed decedent a duty to warn decedent of the hostility toward decedent harbored by another student (Roque), a former friend of the decedent, who murdered decedent: To hold defendant […]

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HERE THE PARTY WHO WAS AWARDED COSTS ON APPEAL WAS ENTITLED TO REIMBURSEMENT OF THE COST OF PROCURING THE TRANSCRIPTS FOR THE RECORD ON APPEAL (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined the party who has been awarded costs on appeal is entitled the cost of procuring the transcripts included in the record on appeal: Pursuant to CPLR 8301(a)(13), a party to whom costs are awarded on appeal is entitled to tax his or her necessary disbursements for “reasonable […]

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ALTHOUGH THE HIRING PARTY IS GENERALLY NOT RESPONSIBLE FOR THE NEGLIGENCE OF AN INDEPENDENT CONTRACTOR, THERE IS A NONDELEGABLE-DUTY EXCEPTION TO THAT RULE; THE OWNER OF A BAR OPEN TO THE PUBLIC HAS A NONDELEGABLE DUTY TO MAINTAIN SAFE INGRESS AND EGRESS; HERE THE INDEPENDENT CONTRACTOR WAS REPAIRING THE BUILDING FACADE WHEN A CONCRETE BUCKET FELL ON THE PLAINTIFF (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether defendant property owner, 6810 Wai, was liable for an action by an independent contractor hired to repair the facade of defendant’s building. Defendant operated a bar on the ground floor of the building. The independent contractor apparently caused a concrete bucket […]

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