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Entries by Bruce Freeman

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NOTE OF ISSUE AND CERTIFICATE OF READINESS CONTAINING INCORRECT INFORMATION (I.E., DISCOVERY WAS COMPLETE) SHOULD HAVE BEEN VACATED; STIPULATION OF CONFIDENTIALITY WAS SUFFICIENT TO PROTECT TRADE SECRETS (FOURTH DEPT).

The Fourth Department determined the motion to vacate the note of issue and a certificate of readiness because the information therein was not correct (discovery was not complete). The court further determined that the confidentiality stipulation was sufficient to protect trade secrets during discovery: … [C]ontrary to the statements on the certificate of readiness, discovery was […]

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IF A DEFENDANT IS NOT SENTENCED AS A PREDICATE FELON THE MINIMUM SENTENCE MUST BE ONE-THIRD OF THE MAXIMUM, NOT ONE-HALF AS IT WAS HERE, AN APPELLATE COURT CAN NOT LET AN ILLEGAL SENTENCE STAND (FOURTH DEPT).

The Fourth Department noted that, where a defendant is not sentenced as a predicate felon, the minimum sentence is one-third of the maximum, not one-half of the maximum: We note, however, that the court imposed an illegal sentence of 3½ to 7 years’ imprisonment on defendant’s conviction for CPW in the third degree. Because defendant […]

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WHEN A PARTY’S ATTORNEY APPEARS THE PARTY IS NOT IN DEFAULT AND MAY THEREFORE APPEAL, FAMILY COURT SHOULD NOT HAVE AWARDED CUSTODY TO NONPARENTS ABSENT A HEARING DEMONSTRATING EXTRAORDINARY CIRCUMSTANCES AND THE BEST INTERESTS OF THE CHILD (FOURTH DEPT).

The Fourth Department determined mother was not in default, because her attorney had appeared, and therefore mother can appeal the award of custody to the nonparent petitioners. The Fourth Department further determined Family Court should have held a hearing to determine whether extraordinary circumstances justified awarding custody to nonparents. The prior consent order of custody […]

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MATTER SENT BACK FOR A DETERMINATION WHETHER THE PEOPLE PRESENTED NEW EVIDENCE TO THE SECOND GRAND JURY AFTER A ‘NO BILL,’ THE PEOPLE WERE GRANTED PERMISSION TO RE-PRESENT ON THE GROUND THAT NEW EVIDENCE WAS AVAILABLE (FOURTH DEPT).

The Fourth Department sent the case back for a ruling on a portion of defendant’s omnibus motions. The grand jury had returned a “no bill” on the leaving the scene of a serious injury accident. The People sought to re-present the charges to a new grand jury alleging that a witness who had given false testimony […]

CONSECUTIVE SENTENCES FOR THE SALE OF SMALL AMOUNTS OF COCAINE UNDULY HARSH, CONCURRENT SENTENCES IMPOSED (FOURTH DEPT).

The Fourth Department determined the consecutive sentences for the sale of small amounts of cocaine was unduly harsh and imposed concurrent sentences. The defendant had been promised concurrent sentences of four years prior to trial. After trial consecutive seven-year sentences were imposed: Here, the record establishes that defendant was 35 years old at the time […]

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DEFENDANTS DID NOT DEMONSTRATE WHEN THE CAUSE OF ACTION FOR LEAD-PAINT EXPOSURE ACCRUED, THEREFORE THE SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED ON THE GROUND THAT THE STATUTE OF LIMITATIONS HAD EXPIRED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined that defendant’s failed to demonstrate when the lead-paint-exposure cause of action accrued. Therefore the motion for summary judgment on the ground that the statute of limitations had passed should not have been granted: In moving to dismiss the complaint on statute of limitations grounds, each defendant had […]

THE 3RD DEPARTMENT, REVERSING FAMILY COURT, DETERMINED IT WAS IN THE BEST INTERESTS OF THE CHILD (BORN 2003) TO ORDER A DNA TEST FOR PETITIONER, IN PART BECAUSE NOT KNOWING WHO HER BIOLOGICAL FATHER IS IS A SOURCE OF TURMOIL (THIRD DEPT).

The Third Department, reversing Family Court, determined it was in the child’s best interests that petitioner undergo a paternity test: In light of [the] evidence, as well as evidence revealed at the Lincoln hearing, we disagree with Family Court’s determination that equitable estoppel applies and find that it is in the child’s bests interests for DNA testing […]

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ALTHOUGH DEFENDANT WAS WARNED HE WOULD BE SENTENCED EVEN IF HE DIDN’T APPEAR AT SENTENCING, THE JUDGE SHOULD NOT HAVE SENTENCED DEFENDANT IN ABSENTIA WITHOUT FIRST INQUIRING INTO THE REASON AND WHETHER DEFENDANT COULD BE LOCATED (THIRD DEPT).

The Third Department, vacating the defendant’s sentence, determined defendant should not have been sentenced in absentia: Defendant had a waivable right to be present at sentencing, and he was indisputably informed of that right “and of the consequences for failing to appear, including the fact that the proceedings would go forward in his . . . […]

COUNTY COURT SHOULD NOT HAVE DETERMINED THE INTEGRITY OF THE GRAND JURY WAS COMPROMISED BY THE PROSECUTOR’S FAILURE TO INQUIRE FURTHER INTO THE POTENTIAL BIAS OF A GRAND JUROR, A TEACHER, WHO HAD TAUGHT THE DEFENDANT TEN YEARS BEFORE, INDICTMENT REINSTATED (THIRD DEPT).

The Third Department, reversing County Court, determined, on the People’s appeal, that the integrity of the grand jury was not affected by the prosecutor’s alleged failure to inquire about the potential bias of a grand juror. One of the grand jurors was a teacher and the defendant had been his student 10 years before: “Dismissal […]

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THE COURT SHOULD HAVE HELD A HEARING TO DETERMINE WHETHER DEFENDANT WAS INFORMED BY DEFENSE COUNSEL OF A PLEA OFFER WHICH WAS MORE LENIENT THAN THE OFFER TO WHICH HE PLED (THIRD DEPT).

The Third Department, reversing County Court, determined that the court should have held a hearing to determine whether defendant was informed of a plea offer by defense counsel. Defendant argued the failure to inform him of the plea offer, which was more lenient than the offer to which he pled, constituted ineffective assistance of counsel: […]

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