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Entries by Bruce Freeman

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DEFENDANT PLED GUILTY TO THE CHARGES IN TWO INDICTMENTS, WITH RESPECT TO ONE OF THE INDICTMENTS, COUNSEL WHO NEGOTIATED THE PLEA OFFER HAD BEEN RELIEVED AS DEFENSE COUNSEL BECAUSE OF A CONFLICT OF INTEREST, CONVICTIONS REVERSED (SECOND DEPT).

The Second Department reversed defendant’s convictions by guilty plea because defense counsel had a conflict of interest: The defendant was charged under Indictment No. 13-00668 with murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree. The defendant was later charged under […]

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INCLUSORY CONCURRENT COUNTS OF THE THE AGGRAVATED VEHICULAR HOMICIDE CONVICTIONS SHOULD HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department dismissed the inclusory concurrent counts of the aggravated vehicular homicide convictions: As the People correctly concede, the defendant’s convictions of vehicular manslaughter in the first degree (Penal Law § 125.13[3], [4]), vehicular manslaughter in the second degree (Penal Law § 125.12[1]), reckless driving (Vehicle and Traffic Law § 1212), and operating a […]

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FAMILY COURT SHOULD HAVE MADE FINDINGS TO ALLOW THE CHILD TO PETITION FOR SPECIAL IMMIGRANT JUVENILE STATUS (SIJS), PARENTAL NEGLECT AND DANGER FROM GANGS IN HONDURAS WAS DEMONSTRATED, APPELLATE COURT CAN MAKE ITS OWN FACTUAL FINDINGS ON A SUFFICIENT RECORD (SECOND DEPT).

The Second Department, reversing Family Court, determined the child’s motion for findings enabling him to petition for Special Immigrant Juvenile Status (SIJS) should have been granted: “This Court’s power to review the evidence is as broad as that of the hearing court, and where, as here, the record is sufficiently complete to make our own […]

DEFENDANT’S FOR CAUSE CHALLENGE TO A PROSPECTIVE JUROR WHO SAID HE WAS ‘NOT SURE’ HE COULD BE IMPARTIAL SHOULD HAVE BEEN GRANTED, CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s conviction, determined defendant’s for cause challenge to a prospective juror should have been granted: The challenged panelist made a statement reflecting a state of mind likely to preclude the rendering of an impartial verdict (see CPL 270.20[1][b]), and the court did not elicit an unequivocal assurance that in rendering a verdict […]

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JURY NOTE FOUND IN THE COURT FILE BY APPELLATE COUNSEL WAS, AFTER A RECONSTRUCTION HEARING, DETERMINED TO HAVE BEEN A DRAFT WHICH WAS DISCARDED BY THE JURY, AS OPPOSED TO A NOTE OF WHICH COUNSEL SHOULD HAVE BEEN NOTIFIED, THEREFORE THE PROHIBITION OF RECONSTRUCTION HEARINGS WITH RESPECT TO THE HANDLING OF JURY NOTES DID NOT APPLY (CT APP).

The Court of Appeals, over a substantive concurrence, determined, based upon a reconstruction hearing held by Supreme Court at the direction of the Appellate Division, a jury note found in the court file by appellate counsel was a draft that was discarded by the jury. Therefore the strict requirements surrounding notification of counsel of the […]

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THE SCARANGELLA EXCEPTION TO STRICT PRODUCTS LIABILITY WHICH MAY APPLY WHEN A SAFETY FEATURE IS AVAILABLE BUT THE BUYER CHOOSES NOT TO PURCHASE IT, MAY BE APPLICABLE EVEN WHEN THE BUYER IS A RENTAL BUSINESS, SUPREME COURT’S AND THE APPELLATE DIVISION’S CONTRARY RULING REVERSED, NEW TRIAL ORDERED (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a dissenting opinion, reversing the Appellate Division and ordering a new trial, determined: (1) the so-called Scarangella exception may apply where the manufacturer sells its product to a rental business; and (2) the jury instruction misstated the law concerning a manufacturer’s liability where its product is […]

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PLAINTIFF-TENANT IS DISABLED BY DEPRESSION, DEFENDANT-LANDLORD’S REFUSAL OF PLAINTIFF’S REQUEST TO KEEP AN EMOTIONAL SUPPORT DOG IN HIS APARTMENT CONSTITUTED DISCRIMINATION UNDER THE FAIR HOUSING ACT AND THE HUMAN RIGHTS LAW, THE LANDLORD’S LIMITING PLAINTIFF’S LEASE TERM TO THREE MONTHS CONSTITUTED IMPERMISSIBLE RETALIATION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Garry, reversing Supreme Court, determined plaintiff-tenant’s discrimination and retaliation claims against defendant landlord should not have been dismissed. Plaintiff demonstrated his need for an emotional support dog (he suffers from debilitating depression) and further demonstrated the landlord’s denial of his request to keep a dog was […]

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INCLUSION OF CLAIMANT’S PHOTOGRAPH ON A WALL OF SHAME DEPICTING PERSONS ARRESTED DURING OPERATION SAFE INTERNET, AN INVESTIGATION INTO THE USE OF THE INTERNET FOR THE SEXUAL EXPLOITATION OF CHILDREN, CONSTITUTED ACTIONABLE DEFAMATION BY IMPLICATION SUPPORTING A $300,000 DAMAGES AWARD (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, determined the Court of Claim’s decision awarding claimant $300,000 in this defamation-by-implication action against the state was supported by the evidence. Claimant had been arrested during Operation Safe Internet, but only because of the alleged Internet communication by claimant’s roommate. Claimant was arrested solely for possession […]

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OHIO FIREARMS DEALER DID NOT HAVE MINIMUM CONTACTS WITH NEW YORK SUFFICIENT FOR THE EXERCISE OF LONG-ARM JURISDICTION OVER HIM, A GUN PURCHASED IN OHIO BY AN OHIO RESIDENT WAS SOLD ON THE BLACK MARKET IN NEW YORK AND WAS USED IN NEW YORK TO SHOOT PLAINTIFF (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, over a concurring opinion and a three-judge dissenting opinion, determined that an Ohio firearms dealer (Brown) did not have “minimum contacts” with New York sufficient for the exercise of long-arm jurisdiction (CPLR 302) over him. A gun sold by Brown to Bostic, an Ohio resident, in […]

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NEW TRIAL ORDERED BECAUSE THE INCONSISTENCY IN THE VERDICT SHEET COULD NOT BE REMEDIED AFTER THE JURY WAS DISCHARGED, THE JURY HAD AWARDED PLAINTIFF-STUDENT $1 MILLION IN A SUIT AGAINST A SCHOOL DISTRICT STEMMING FROM BULLYING BY OTHER STUDENTS (THIRD DEPT).

The Third Department determined a new trial was necessary because of an inconsistency in the jury’s answers on the verdict sheet. The trial court attempted to cure the inconsistency after the jury was discharged by speaking with the jury foreman, who was still in the courthouse when the problem was noticed. The jury had awarded […]

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