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NUMEROUS FAILURES BY THE JUDGE TO FOLLOW THE PROTOCOL FOR BATSON CHALLENGES TO THE PROSECUTION’S ELIMINATION OF JURORS REQUIRED A NEW TRIAL, THE FOURTH DEPT NOTED THAT BATSON CHALLENGES MAY BE BASED UPON COLOR AS OPPOSED TO ETHNICITY, AND THE ETHNICITY OF THE DEFENDANT IS NOT A RELEVANT FACTOR IN A BATSON CHALLENGE (FOURTH DEPT).

The Fourth Department, reversing County Court, determined that the County Court judge did not follow the required steps and procedures for addressing defendant’s Batson challenges to the prosecution’s exercise of peremptory challenges. In one instance the judge indicated the prospective juror was “Carribean,” not “African American.” The Fourth Department noted that a Batson challenge may […]

JUROR MISCONDUCT, INCLUDING COMMUNICATIONS WITH THIRD PARTIES AND WEB BROWSING IN VIOLATION OF THE JUDGE’S ADMONITIONS, WARRANTED A NEW TRIAL IN THIS MURDER CASE (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined that juror misconduct warranted a new trial in this murder case: We begin by noting that, at the hearing on the CPL 330.30 motion, defendant established that during the trial juror number 12 engaged in text messaging with third parties about the trial. Indeed, after being selected […]

QUESTION OF FACT WHETHER STAIRWAY WHICH COLLAPSED WAS TEMPORARY OR PERMANENT, ONLY TEMPORARY STAIRWAYS ARE COVERED UNDER LABOR LAW 240 (1), QUESTIONS OF FACT WHETHER PROJECT MANAGER HAD SUFFICIENT SUPERVISORY CONTROL TO BE LIABLE UNDER LABOR LAW 240 (1), 241 (6) AND 200 (FOURTH DEPT).

The Fourth Department determined there was a question of fact whether the stairs which collapsed were temporary or permanent. If the stairs were temporary they would be considered the functional equivalent of a ladder and would be covered under Labor Law 240 (1). There was also a question of fact whether a project manager could […]

THE PROPONENT OF A MISSING WITNESS CHARGE MUST FIRST DEMONSTRATE THE TESTIMONY OF THE MISSING WITNESS WOULD NOT MERELY BE CUMULATIVE (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined that the proponent of a missing witness jury instruction must first demonstrate the testimony of the witness would not have been cumulative: In the [1st] , [2nd], and [3rd] Departments, it is well established that the proponent of such a charge has the ” initial burden of […]

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THE PATTERN JURY INSTRUCTIONS FOR TORTIOUS INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE ARE WRONG, THE INDEPENDENT CRIME OR TORT ELEMENT IS A FACTUAL QUESTION FOR THE JURY AND SHOULD NOT BE DECIDED AS A MATTER OF LAW BY THE COURT, MOTION TO SET ASIDE THE $5 MILLION VERDICT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined defendant’s motion to set aside the verdict based upon flawed jury instructions should have been granted. Plaintiff was awarded a $5 million verdict based upon complaints made by the defendant, who taught at the school, which led to plaintiff’s firing from her position as superintendent […]

THE PLACEMENT OF THE LADDER WAS DEEMED THE CAUSE OF PLAINTIFF’S FALL AND PLAINTIFF HAD PLACED THE LADDER, THEREFORE PLAINTIFF’S ACTIONS WERE DEEMED THE SOLE PROXIMATE CAUSE OF HIS INJURY PRECLUDING RECOVERY IN THIS LABOR LAW 240 (1) CASE (FOURTH DEPT).

The Fourth Department, over a dissent, determined that plaintiff’s actions were the sole proximate cause of his fall from a ladder in this Labor Law 240 (1) case. The court determined it was the placement of the ladder which was the cause of the accident and defendant had placed the ladder: Plaintiff alleged in his […]

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THE COLLECTIVE BARGAINING AGREEMENTS ARE AMBIGUOUS ON THE ISSUE WHETHER COUNTY RETIREES WHO BECOME ELIGIBLE FOR MEDICARE ARE ENTITLED TO THE FULL MEDICAL BENEFITS AFFORDED THEM AT RETIREMENT, EXTRINSIC EVIDENCE, I.E., WHAT HAD BEEN DONE IN THE PAST, SUPPORTS THE DETERMINATION THAT RETIREES WHO BECOME ELIGIBLE FOR MEDICARE ARE NOT ENTITLED TO FULL BENEFITS (FOURTH DEPT).

The Fourth Department determined retired Monroe County employees who become eligible for Medicare are not entitled to the full medical insurance benefits which were afforded them at retirement. The collective bargaining agreements (CBAs) were deemed ambiguous on the issue and the court looked to what had been done in the past as controlling extrinsic evidence: Inasmuch […]

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DEFENSE COUNSEL PROVIDED DEFENDANT WITH ERRONEOUS INFORMATION ABOUT THE LENGTH OF HIS SENTENCE SHOULD HE BE CONVICTED AFTER TRIAL AND ERRONEOUSLY TOLD THE DEFENDANT HIS PLEA TO SEX TRAFFICKING WOULD NOT MAKE HIM SUBJECT TO THE SEX OFFENDER REGISTRATION ACT (SORA), DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL. CONVICTION BY GUILTY PLEA REVERSED (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction by guilty plea, determined defendant did not receive effective assistance of counsel. Defense counsel told the defendant he could receive a 75-year sentence if convicted on the charged offenses, when the most the defendant could receive was 15 to 30 years. Defense counsel also erroneously told the defendant the […]

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PETITION SEEKING MEDICAL ASSISTANCE SHOULD NOT HAVE BEEN DENIED BASED UPON THE INABILITY TO DETERMINE THE FINANCIAL RESOURCES AVAILABLE TO THE NURSING HOME RESIDENT’S ESTRANGED WIFE, COURT MAY NOT CONSIDER THEORY NOT RAISED BEFORE THE AGENCY (FOURTH DEPT).

The Fourth Department, annulling the determination of the Erie County Department of Social Services, held that petitioner’s application for medical assistance should not have been denied on the ground that the financial resources available to the nursing home resident’s estranged wife could not be determined. The court noted that it may not consider any theories argued […]

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INSUFFICIENT EVIDENCE DEFENDANT INTENDED TO DESTROY A MOTORCYCLE WHEN SHE STARTED A FIRE IN A GARAGE, CRIMINAL MISCHIEF CONVICTION REVERSED UNDER A WEIGHT OF THE EVIDENCE ANALYSIS (FOURTH DEPT).

The Fourth Department, reversing defendant’s conviction under a weight of the evidence analysis, determined there was insufficient proof that defendant intended to destroy a motorcycle that was in the garage in which she started a fire. She testified she started the fire because she was angry with her husband and she expected he would put […]

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