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Entries by Bruce Freeman

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EXECUTIVE LAW DOES NOT PROVIDE FOR THE CIRCUMSTANCE WHERE MORE THAN ONE CRIME VICTIM OBTAINS A JUDGMENT AGAINST THE ASSETS OF THE OFFENDER, HERE THE OFFICE OF VICTIM SERVICES PROPERLY PAID OUT THE ASSETS TO THE FIRST CRIME VICTIM WHO OBTAINED A JUDGMENT (THIRD DEPT).

The Third Department determined the Office of Victim Services (OVS) properly paid out the assets of an incarcerated offender to the first crime victim to obtain a judgment. The statute does not provide for retaining assets for other crime victims who may subsequently obtain a judgment against the offender: “Executive Law § 632—a sets forth […]

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DESPITE RULING THAT NO EVIDENCE OF DEFENDANT’S REQUESTS TO TALK TO COUNSEL COULD BE PRESENTED, TWO TESTIFYING WITNESSES VIOLATED THAT RULING, BECAUSE THAT EVIDENCE CONFLICTED WITH THE DEFENSE STRATEGY A MISTRIAL SHOULD HAVE BEEN DECLARED, NEW TRIAL ORDERED (THIRD DEPT).

The Third Department reversed defendant’s conviction of felony leaving the scene of an accident and ordered a new trial. Defendant struck a pedestrian whose body came into defendant’s car through the windshield. Defendant did not contact the police for over an hour. Prior to trial defense counsel obtained a ruling from the judge that the […]

UNDER THE PUBLIC AUTHORITIES LAW, LAID OFF SEASONAL EMPLOYEES WHO HAD BEEN TRANSFERRED FROM THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION TO A PUBLIC BENEFIT CORPORATION WERE NOT ENTITLED TO REMAIN IN THE COLLECTIVE BARGAINING UNIT OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION WHEN REHIRED BY THE PUBLIC BENEFIT CORPORATION (THIRD DEPT).

The Third Department determined a seasonal employee of a public benefit corporation who was laid off and re-hired was not entitled to stay with the collective bargaining unit to which he belonged before the lay-off. Petitioner had worked for the Department of Environmental Conservation (DEC) at a ski center. The ski center was transferred from […]

DEFENDANT DEMONSTRATED CONTINUOUS SEASONAL USE OF A TRAIL WHICH CROSSED OVER ONTO PLAINTIFF’S LAND (TO GO AROUND TWO OBSTACLES) FOR 20 YEARS, DEFENDANT HAD A PRESCRIPTIVE EASEMENT OVER THE TWO CROSS-OVER PORTIONS OF THE TRAIL (THIRD DEPT).

The Third Department determined defendant (TRD) had a prescriptive easement over two portions of a trail that crossed over onto plaintiff’s land to go around obstacles. Seasonal use of the trail for hunting was deemed continuous use. The fact that the trail was not used for five years when the party (Cisgay) who testified on […]

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COUNTY COURT ABUSED ITS DISCRETION WHEN IT DECLARED A MISTRIAL AFTER ONLY A SHORT PERIOD OF DELIBERATIONS, JEOPARDY ATTACHED AND DEFENDANT CAN NOT BE REPROSECUTED (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea and dismissing the indictment, determined the judge did not sufficiently explore alternatives before declaring a mistrial on the basis the jury was deadlocked. Therefore jeopardy attached the defendant’s subsequent guilty plea was vacated: Here, the jury had deliberated for a little over two hours — excluding […]

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ALTHOUGH DEFENDANT WAS PRESENT IN A GARAGE WHERE METHAMPHETAMINE WAS BEING MANUFACTURED, THE EVIDENCE WAS INSUFFICIENT TO DEMONSTRATE SHE CONSTRUCTIVELY POSSESSED THE DRUGS, POSSESSION CONVICTION REVERSED AND INDICTMENT DISMISSED (THIRD DEPT).

The Third Department reversed defendant’s conviction of criminal possession of a controlled substance and dismissed the indictment. Defendant’s presence in a garage where methamphetamine was being manufactured was not enough to support the People’s theory she constructively possessed the drugs. The facts that defendant had admitted to using methamphetamine in the past and had recently […]

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EMERGENCY EXCEPTION TO THE WARRANT REQUIREMENT DID NOT JUSTIFY ENTRY AND SEARCH OF DEFENDANT’S APARTMENT, CONVICTIONS REVERSED (THIRD DEPT).

The Third Department reversed defendant’s criminal contempt and violation of probation convictions because the evidence of the offenses was the fruit of an illegal entry and search of defendant’s apartment. The attempt to justify the entry and search under the emergency exception to the warrant requirement was rejected. The police officer who entered defendant’s apartment, […]

DESPITE THE FACT THAT THE PETITION SEEKING REVIEW OF FREEDOM OF INFORMATION LAW (FOIL) REQUESTS WAS MOOT, PETITIONER HAD SUBSTANTIALLY PREVAILED AND WAS ENTITLED TO COSTS AND FEES, MATTER REMITTED (THIRD DEPT).

The Third Department, modifying Supreme Court, determined petitioner was entitled to costs and fees associated with his FOIL request for information about the confidential informant in the case which led to petitioner’s conviction and incarceration. The state police did not timely respond to petitioner’s requests and eventually provided two police reports and a finding that the […]

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DEFENSE COUNSEL INEFFECTIVE FOR FAILING TO MOVE TO DISMISS THE ACCUSATORY INSTRUMENTS ON SPEEDY TRIAL GROUNDS, CONVICTIONS REVERSED (THIRD DEPT).

The Third Department reversed defendant’s convictions and dismissed the accusatory instruments because defendant did not receive effective assistance of counsel. Counsel failed to moved to dismiss the prosecution on the ground that defendant’s right to a speedy trial had been violated. Had the motion been made, it would have succeeded: Where, as here, a class […]

MOTION TO VACATE DEFAULT JUDGMENT SHOULD HAVE BEEN GRANTED, PLAINTIFF’S ATTORNEY’S ILLNESS WAS A REASONABLE EXCUSE FOR FAILURE TO APPEAR AT ORAL ARGUMENT, MERITORIOUS ACTION DEMONSTRATED, FIRST MOTION DENIED WITHOUT PREJUDICE, SECOND MOTION ON THE SAME GROUNDS WAS NOT, THEREFORE, PRECLUDED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the plaintiff’s motion to vacate a default judgment entered when plaintiff did not appear at the argument on defendant’s motion to dismiss should have been granted. Plaintiff’s attorney’s illness was a reasonable excuse. The court noted that, although only one motion to vacate a default judgment is […]

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