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“MOLINEUX” EVIDENCE DEFENDANT HAD PREVIOUSLY THREATENED HIS WIFE WITH A HANDGUN FOR PERCEIVED INFIDELITY SHOULD NOT HAVE BEEN ADMITTED IN THIS PROSECUTION ALLEGING DEFENDANT POSSESSED A HANDGUN WITH THE INTENT TO USE IT AGAINST HIS STEPCHILDREN; NEW TRIAL ORDERED; THE PEOPLE’S FAILURE TO FILE A REDUCED ACCUSATORY INSTRUMENT AFTER THE JUDGE REDUCED THE CHARGE IN COUNT 3 REQUIRED DISMISSAL OF THAT COUNT (FOURTH DEPT).

The Fourth Department determined that the judge’s Molineux ruling was an error requiring reversal and the People’s failure to file an amended accusatory instrument after the judge reduced the charge required dismissal of the related count: … [T]he charge of criminal possession of a weapon in the second degree is based on allegations that defendant […]

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THE JUDGE’S FAILURE TO GIVE THE CIRCUMSTANTIAL-EVIDENCE JURY INSTRUCTION IN THIS ARSON/MURDER CASE REQUIRED REVERSAL AND A NEW TRIAL (FOURTH DEPT).

The Fourth Department, reversing defendant’s arson, murder and reckless endangerment convictions, determined the trial judge should have given the circumstantial evidence instruction to the jury: “It is well settled that a trial court must grant a defendant’s request for a circumstantial evidence charge when the proof of the defendant’s guilt rests solely on circumstantial evidence […]

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DEFENDANTS MOTION TO VACATE THE DEFAULT BASED UPON LAW OFFICE FAILURE AND PROOF OF A MERITORIOUS DEFENSE SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined defendants motion to vacate the default judgment based upon law office failure should have been granted: In support of the motion to vacate, defendants affirmed that they had retained former counsel and that he had informed them that he would file an answer, but his office failed to […]

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THE JUDGE DID NOT MAKE THE REQUIRED FINDINGS OF FACT AND CONCLUSIONS OF LAW BEFORE DETERMINING DEFENDANT’S SORA RISK-LEVEL; MATTER REMITTED (SECOND DEPT). ​

The First Department, remitting the matter, determined the judge did not make the required findings of fact and conclusions of law when designating the defendant’s risk level under SORA: In designating a sex offender’s risk level under SORA, “[t]he court shall render an order setting forth its determinations and the findings of fact and conclusions […]

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HERE THE DEFENDANT TOWN DID NOT DEMONSTRATE AS A MATTER OF LAW THAT COMPLIANCE WITH THE NEW YORK VOTING RIGHTS ACT (NYVRA) WOULD FORCE THE TOWN TO VIOLATE THE EQUAL PROTECTION CLAUSE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Lasalle, reversing Supreme Court, determined the defendant town did not demonstrate as a matter of law that compliance with the New York Voting Rights Act (NYVRA) would force the town to violate the Equal Protection Clause of the 14th Amendment to the US Constitution: On this […]

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THE DEFENDANT TOWN DID NOT MEET THE REQUIREMENTS OF THE NEW YORK VOTING RIGHTS ACT (NYVRA) AND WAS THEREFORE INELIGIBLE FOR THE 90-DAY “SAFE HARBOR” EXTENSION TO ADDRESS THE VIOLATION OF THE NYVRA ALLEGED BY PLAINTIFF-CITIZENS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Chambers, determined that the defendant Town of Newburgh’s motion to dismiss the complaint alleging a violation of the New York Voting Rights Act (NYVRA) was properly denied. The so-called “safe harbor” provision of the NYVRA extends the time allowed for a town to address an alleged […]

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THERE IS A QUESTION OF FACT WHETHER THE “INSANITY” TOLL OF THE STATUTE OF LIMITATIONS APPLIES TO THIS ASSAULT AND FALSE ARREST ACTION AGAINST THE CITY AND POLICE OFFICERS; THE TOLL APPLIES WHEN PERSONS ARE UNABLE TO PROTECT THEIR LEGAL RIGHTS BECAUSE OF AN INABILITY TO FUNCTION IN SOCIETY (SECOND DEPT).

The Second Department remitted the matter for a determination whether the statute of limitations was tolled because of petitioner’s “insanity” in this assault and false arrest action against the city and police officers: Pursuant to CPLR 208(a) “[i]f a person entitled to commence an action is under a disability because of . . . insanity […]

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ALTHOUGH THE CHILD’S IMMIGRANT VISA HAD BEEN LOST, THE PROOF DEMONSTRATED THAT THE CHILD MUST HAVE BEEN ISSUED THE APPROPRIATE VISA AND THAT, THEREFORE, PETITIONER WAS ENTITLED TO REGISTRATION OF A FOREIGN ADOPTION AND AN ORDER OF ADOPTION FOR THE CHILD (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Ford, determined petitioner was entitled to registration of foreign adoption and an order of adoption for the child who was born in China based upon proof the child must have been admitted to the US with an IR-3 or IH-3 immigrant visa, which had been lost: […]

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DESPITE THE COURT OF APPEALS RULING THAT THE INSURANCE LAW PROVISION REQUIRING UNINSURED MOTORIST COVERAGE DOES NOT APPLY TO POLICE VEHICLES, PLAINTIFF POLICE OFFICER, INJURED IN AN ACCIDENT WITH AN UNINSURED MOTORIST WHILE DRIVING HIS POLICE VEHICLE, WAS ENTITLED TO UNINSURED MOTORIST COVERAGE UNDER HIS OWN PERSONAL INSURANCE POLICY (SECOND DEPT). ​

The Second Department, reversing Supreme Court, in a full-fledged opinion by Justice Dowling, determined that a police officer driving a police vehicle involved in an accident with an uninsured driver can seek uninsured motorist (UM/SUM) coverage under the officer’s personal insurance policy, notwithstanding the Court of Appeals ruling that “Insurance Law § 3420(f)—providing that all […]

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A MOTION FOR SUMMARY JUDGMENT MAY BE MADE ANYTIME AFTER ISSUE IS JOINED; A JUDGE CANNOT REQUIRE THE FILING OF A NOTE OF ISSUE BEFORE A SUMMARY JUDGMENT MOTION CAN BE MADE (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the judge should have have denied plaintiff’s motion for summary judgment in this rear-end collision case on the ground a note of issue had not been filed: “CPLR 3212(a) provides that any party may move for summary judgment once issue has been joined. The court may ‘set a […]

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