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Entries by Bruce Freeman

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ALTHOUGH A COURT HAS THE DISCRETIONARY “INTERESTS OF JUSTICE” POWER TO VACATE ITS OWN ORDER, THAT POWER SHOULD ONLY BE EXERCISED IN UNIQUE OR UNUSUAL CIRCUMSTANCES NOT PRESENT HERE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined Supreme Court should not have vacated its own dismissal of the action in 2013 because (Wilmington) demonstrated none of criteria for vacation of a judgment or order described in CPLR 5015 (a); “Under CPLR 5015(a), the court which rendered a judgment or order may relieve a party from […]

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SUBSEQUENT COMPLAINTS WHICH REPEAT THE ALLEGATIONS IN THE INITIAL COMPLAINT ARE “SUPPLEMENTAL,” NOT “AMENDED,” COMPLAINTS; DEFENDANT NEED ONLY ANSWER THE INITIAL COMPLAINT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this foreclosure proceeding was not in default. The defendant answered the first complaint but did not answer two subsequent complaints which were designated “amended complaints,” Amended complaints require an answer, but “supplemental complaints” do not require an answer. Here the “amended complaints” merely repeated the allegations […]

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AT THE SUPPRESSION HEARING THE OFFICER TESTIFIED THE SEARCH OF DEFENDANT’S PERSON AFTER A TRAFFIC STOP WAS BASED UPON THE ODOR OF MARIJUANA; THE OFFICER DID NOT TESTIFY HE WAS QUALIFIED BY TRAINING AND EXPERIENCE TO RECOGNIZE THE ODOR OF MARIJUANA; THE SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the traffic stop was proper (inoperable brake light) but the search of defendant’s person, based on the odor of marijuana, was not: … [T]he officer’s testimony was insufficient to establish that there was probable cause for the search of the defendant’s person. As the law existed in 2020, […]

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WHETHER THE JUDGMENT DEBTOR IS ENTITLED TO RESTITUTION AFTER REVERSAL OF A RESTRAINING NOTICE AND WHETHER PLAINTIFF IS ENTITLED TO AN INSTALLMENT PAYMENT ORDER ARE DISCRETIONARY ISSUES TO BE DECIDED UPON REMAND; CRITERIA EXPLAINED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, reversing Supreme Court and remanding the matter, determined that whether the judgment debtor was entitled to restitution based on the reversal of a restraining notice and whether the plaintiff is entitled to an installment payment order were not decided by the reversal, but  rather were […]

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DEFENDANT’S COMPLAINTS ABOUT THE ACTIONS OF DEFENSE COUNSEL WERE NOT SPECIFIC OR SERIOUS ENOUGH TO WARRANT AN INQUIRY BY THE JUDGE; THREE-JUDGE DISSENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Troutman, over a three-judge dissent, determined defendant had not made specific and serious allegations about the behavior of his attorney which were sufficient to warrant an inquiry by the judge: … [D]efendant argues that the complaints contained in his letter were factually specific and serious […]

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THE FOIL PERSONAL PRIVACY EXEMPTION DOES NOT PROVIDE A BLANKET EXEMPTION FOR CIVILIAN COMPLAINTS AGAINST POLICE OFFICERS, INCLUDING UNSUBSTANTIATED COMPLAINTS; WHETHER SUCH A DOCUMENT SHOULD BE REDACTED OR WITHHELD MUST BE DETERMINED DOCUMENT-BY-DOCUMENT (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Cannataro, determined the personal privacy exemption in FOIL did not provide a blanket exemption for civilian complaints against police officers, including unsubstantiated complaints. Rather, whether the personal privacy exemption applies must be determined on a record-by-record basis: FOIL’s personal privacy exemption […]

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THE FORMER EXEMPTION FROM A FOIL REQUEST FOR POLICE DISCIPLINARY RECORDS WAS REPEALED IN 2020; THE REPEAL APPLIES RETROACTIVELY SUCH THAT DISCIPLINARY RECORDS CREATED PRIOR TO THE REPEAL ARE NO LONGER EXEMPT (CT APP).

The Court of Appeals, affirming the Appellate Division, in a full-fledged opinion by Judge Halligan, determined that the repeal of the exemption from a FOIL request for police disciplinary records applies retroactively to documents created before the repeal: … [W]e conclude that the Legislature intended for the statutory repeal to have retroactive effect. For starters, […]

MAJORITY: THE DEFENDANT’S WAIVER OF PARTICIPATION IN THE SHOCK INCARCERATION PROGRAM WAS NOT A COMPONENT OF THE SENTENCE AND THEREFORE THE LEGALITY OF THE SENTENCE CANNOT BE CHALLENGED BASED ON THE WAIVER; DISSENT: THE SHOCK WAIVER VIOLATES PUBLIC POLICY AND RENDERS THE SENTENCE ILLEGAL (CT APP).

The Court of Appeals affirmed the First Department’s rejection of defendant’s argument that his waiver of shock incarceration program violated public policy, over an extensive two-judge dissenting opinion. The dissent argued the waiver was against public policy rendering defendant’s sentence illegal. The majority avoided the issue entirely by holding the waiver was not part of […]

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DEFENDANT WAS 16 AT THE TIME OF THE CRIME AND WAS CONVICTED OF MANSLAUGHTER IN 2012; THE CONVICTION WAS AFFIRMED IN 2014; PURSUANT TO A MOTION FOR A WRIT OF CORAM NOBIS BROUGHT IN 2022 IT HAS BEEN DETERMINED THAT SUPREME COURT ERRED IN FAILING TO CONSIDER WHETHER DEFENDANT SHOULD BE AFFORDED YOUTHFUL OFFENDER STATUS AND THE MATTER IS NOW REMITTED TO SUPREME COURT FOR THAT PURPOSE (THIRD DEPT). ​

The Third Department, vacating defendant’s sentence, determined the matter should be remitted for a ruling on whether defendant defendant should be afforded youthful offender status. Defendant, who was 16 at the time of the crime was convicted of manslaughter in 2012. His conviction was affirmed in 2014. In 2022 defendant moved for a writ of […]

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ALTHOUGH THE ERRORS WERE NOT PRESERVED, DEFENDANT’S CONVICTIONS WERE REVERSED IN THE INTEREST OF JUSTICE; THE CREDIBILITY OF ONE OF THE VICTIMS WAS IMPROPERLY BOLSTERED IN OPINION TESTIMONY BY A POLICE OFFICER AND A PSYCHOLOGIST ASSERTING THAT THE VICTIM WAS BELIEVABLE AND RELIABLE; A PRIOR INCONSISTENT STATEMENT BY ONE OF THE VICTIMS, IN WHICH THE VICTIM DENIED DEFENDANT HAD EVER MOLESTED THE VICTIM, SHOULD HAVE BEEN ADMITTED (THIRD DEPT).

The Third Department, in the interest of justice, reversed the “predatory sexual assault against a child” convictions which involved two victims, and ordered a severance if a new trial is held. The Third Department determined the credibility of one of the victims was improperly bolstered by the testimony by a police officer and a psychologist […]

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