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FAILURE TO EXPLAIN TO THE JURY THAT ACQUITTAL OF ATTEMPTED MURDER BASED ON THE JUSTIFICATION DEFENSE REQUIRED ACQUITTAL OF ASSAULT FIRST WAS REVERSIBLE ERROR, NEW TRIAL ON ASSAULT FIRST ORDERED (FIRST DEPT).

The First Department, reversing defendant’s assault first conviction, over an extensive dissent, determined it was reversible error to fail to instruct the jury that acquittal of the top count (attempted murder) based on the justification defense would require acquittal on the assault first count: “While the jury may have acquitted on the top charge without […]

COURT DID NOT MAKE SURE DEFENDANT WAS AWARE OF THE RIGHTS HE WAS GIVING UP BY PLEADING GUILTY, PLEA VACATED (THIRD DEPT).

The Third Department, vacating defendant’s guilty plea, determined the court did not adequately explain the rights defendant was giving up by pleading guilty: During the plea proceedings, County Court engaged in an abbreviated colloquy during which it made only a passing reference to the rights that defendant was giving up by pleading guilty. Notably, the […]

COUNTY COURT SHOULD HAVE INQUIRED INTO THE REASON FOR DEFENDANT’S FAILURE TO APPEAR AT SENTENCING, SENTENCE VACATED (THIRD DEPT)

The Third Department determined the court should have inquired into the reasons for defendant’s failure to appear at sentencing before sentencing him in absentia: When defendant did not appear for sentencing on April 2, 2015, the court noted that defendant had been present for “each and every other occasion,” before issuing a bench warrant and […]

BECAUSE A MATERIAL INDUCEMENT TO DEFENDANT’S GUILTY PLEA WAS NULLIFIED THE PLEA MUST BE VACATED (THIRD DEPT).

The Third Department, reversing defendant’s conviction by guilty plea, determined the complicated facts of this case nullified  a benefit that was expressly promised as inducement to a guilty plea. Defendant had pled guilty to burglaries in two counties (Schenectady and Albany) as a persistent felony offender. Both persistent felony offender guilty pleas were overturned. His […]

QUESTION OF FACT WHETHER AN ORAL CONTRACT WAS FORMED (THIRD DEPT).

The Third Department, modifying Supreme Court, determined plaintiff had raised a question of fact whether there was an oral contract for dock space for and storage of plaintiff’s boat at defendant marina: … [P]laintiff submitted a copy of an invoice from defendant that itemized the charges for winter storage and spring launch and showed that […]

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ANNOUNCING A NEW RULE GOVERNING THE DISCLOSURE OF PROSPECTIVE EXPERT WITNESS’S QUALIFICATIONS IN MEDICAL MALPRACTICE ACTIONS, THE THIRD DEPT REQUIRES COMPLETE DISCLOSURE OF THE QUALIFICATIONS, EVEN IF SUCH DISCLOSURE FACILITATES THE IDENTIFICATION OF THE WITNESS (THIRD DEPT).

The Third Department, announcing a new Third-Department rule governing expert witness disclosure in medical malpractice actions, in a full-fledged opinion by Justice McCarthy, determined plaintiffs are obligated to provide full disclosure of a prospective expert witness’s qualifications, even if the disclosure will identify the witness. Defendants may be entitled to a protective order prohibiting the […]

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EVIDENCE INCLUDED IN A SETTLEMENT LETTER PROPERLY ADMITTED AT TRIAL, MISSING WITNESS JURY INSTRUCTION RE A WITNESS LIVING IN FLORIDA WAS ERROR, EXPERT TESTIMONY WHICH RELIED IN PART ON INADMISSIBLE HEARSAY WAS PROPERLY ADMITTED (FIRST DEPT).

The First Department, affirming the denial of summary judgment and the denial of the motion to set aside the verdict in this probate action, determined evidence included in a settlement letter and hearsay relied upon an expert witness were properly admitted. The court further found that the missing witness jury instruction for the decedent’s treating […]

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PLAINTIFFS’ MOTION FOR A CONTINUANCE TO ALLOW THEIR EXPERT TO COMPLETE HIS TESTIMONY IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiffs’ motion for a continuance to allow their expert to testify in this medical malpractice action should have been granted. When the expert … arrived in the late morning of December 1, 2016, he did not have his original file with him. According to the expert, he left […]

COMMISSIONER OF HEALTH’S DENIAL OF AN APPLICATION TO THE NYS MEDICAL INDEMNITY FUND FOR $12,000 TO PAY FOR A LIFT FOR A DISABLED CHILD WAS ARBITRARY AND CAPRICIOUS (THIRD DEPT).

The Third Department determined the Commissioner of Health’s denial of petitioner’s application to the NYS Medical Indemnity Fund for about $12,000 for a lift which would allow a disabled child to use a pool was arbitrary and capricious: … [T]he Commissioner determined that the pool lift did not qualify, reasoning that “[a] pool is not […]

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REQUIREMENT THAT INDIAN RETAILERS COLLECT AND REMIT TAXES ON CIGARETTES SOLD TO NON-INDIAN CONSUMERS DOES NOT VIOLATE INDIAN LAW OR THE BUFFALO CREEK TREATY OF 1842 (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, determined the requirement that retailers on Indian lands collect and remit taxes on cigarettes sold to non-Indian consumers did not violate the Indian Law or the Buffalo Creek Treaty of 1842: Plaintiffs commenced this action seeking (1) a declaration that Tax Law § 471 […]

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