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Entries by Bruce Freeman

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JURY INSTRUCTION ALLOWED CONVICTION ON A THEORY NOT IN THE INDICTMENT, COUNT DISMISSED, SENTENCING JUDGE DID NOT CONSIDER MITIGATING FACTORS AND INDICATED DEFENDANT WAS SENTENCED HARSHLY BECAUSE HE WENT TO TRIAL, SENTENCE REDUCED (FOURTH DEPT).

The Fourth Department determined that the harassment jury instruction was defective because it allowed the jury to convict on a theory that was not alleged in the indictment. The Fourth Department further found that the 18-year sentence for rape was unduly harsh and reduced the sentence to eight years. The Fourth Department noted that the […]

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A DEFENDANT WHO REQUESTS A RESTITUTION HEARING IS ENTITLED TO ONE, EVEN WHERE A HEARING HAD BEEN HELD AFTER DEFENDANT’S FIRST TRIAL (FOURTH DEPT).

The Fourth Department noted that defendant had requested a restitution hearing and therefore the court was required to hold one. Defendant’s conviction in her first trial was reversed and a new trial was ordered. Even though a hearing had been held in the first proceeding, she was entitled to a hearing after the second trial: […]

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DEFENDANT ENTITLED TO DEMONSTRATE SHE WOULD NOT HAVE PLED GUILTY HAD SHE BEEN INFORMED OF THE DEPORTATION CONSEQUENCES, THE ISSUE SURVIVES THE WAIVER OF APPEAL AND THE FAILURE TO PRESERVE (FOURTH DEPT).

The Fourth Department determined that defendant was entitled to attempt to demonstrate she would not have pled guilty had she been informed of the deportation consequence of her plea, even though the issue had not been preserved and she had waived her right to appeal: … [D]efendant, a noncitizen, contends that her felony guilty plea […]

THE PEOPLE’S GROUND FOR STEP ONE OF THE BATSON CHALLENGE PROCEDURE WAS NOT FACTUALLY CORRECT, THE JUDGE SHOULD NOT HAVE PROCEEDED TO STEP TWO AND THE JUROR SHOULD NOT HAVE BEEN SEATED (FOURTH DEPT).

The Fourth Department reversed defendant’s conviction and dismissed the indictment because of the court’s errors in handling a Batson challenge. The People argued that defense counsel was using all peremptory challenges to exclude women, which was not the case. The court accepted the argument and proceeded to step two of the Batson procedure by asking defense counsel for a […]

UNDER THE DRUG LAW REFORM ACT (DRLA) A DEFENDANT CONVICTED OF A QUALIFYING DRUG FELONY CANNOT BE SENTENCED AS A PERSISTENT FELONY OFFENDER (FOURTH DEPT). ​

The Fourth Department, reversing County Court, in a full-fledged opinion by Justice DeJoseph, in a matter of first impression, determined a defendant convicted of a qualifying drug felony cannot, under the Drug Law Reform Act (DLRA), be sentenced as a persistent felony offender (PFO): In March 2016, defendant, by counsel, moved pursuant to CPL 440.20 to […]

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PLAINTIFF, PURSUANT TO THE CONDOMINIUM DECLARATION AND OFFERING PLAN, WAS THE OWNER OF THE BASEMENT SPACE USED BY DEFENDANTS, PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON ITS TRESPASS ACTION, BECAUSE THE DECLARATION AND OFFERING PLAN, AND THE REFERENCE TO IT IN THE DEEDS, WERE UNAMBIGUOUS, PAROL AGREEMENTS TRANSFERRING OWNERSHIP OF THE AREA TO DEFENDANTS WERE NOT ENFORCEABLE (FIRST DEPT).

The First Department determined plaintiff was entitled to summary judgment on its trespass action against defendant condominium owners based on defendants’ use of a basement storage area which, according to the Declaration and Offering Plan, was owned by plaintiff. Any attempt to transfer ownership of the basement area to defendants’ condominium was ineffectual because there […]

PRO SE PLAINTIFF’S CAUSE OF ACTION ALLEGING THE DEFENDANT ATTORNEY’S FEE WAS UNCONSCIONABLE SHOULD NOT HAVE BEEN DISMISSED, MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court determined the cause action alleging defendant attorney’s fee was unconscionable should not have been dismissed. The court further determined that plaintiff’s motion to disqualify defendant’s attorney because plaintiff had initially consulted with an attorney at the defendant’s attorney’s firm was properly denied: Accepting as true the allegations in the […]

CRITERIA FOR DETERMINING WHETHER A SLIP AND FALL ENTITLES A POLICE OFFICER TO ACCIDENTAL DISABILITY RETIREMENT BENEFITS UNDER THE RETIREMENT AND SOCIAL SECURITY LAW EXPLAINED IN DEPTH, MATTER WAS REMITTED FOR FACTS AND CONCLUSIONS UNDER THE LAW ARTICULATED IN THE OPINION (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice McCarthy, over a partial dissent, took pains to explain the current law distinguishing between a nonactionable misstep from an actionable slip and fall in the context of a police officer’s application for accidental disability retirement benefits. The officer fell descending stone steps which he had used […]

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VERDICT EXONERATING DEFENDANT DRIVER OF ANY COMPARATIVE FAULT IN THIS PEDESTRIAN ACCIDENT CASE SHOULD HAVE BEEN SET ASIDE, DEFENDANT TESTIFIED SHE SAW PERSONS IN THE ROAD BUT DID NOT SLOW DOWN (THIRD DEPT).

The Third Department determined plaintiff’s motion to set aside the defense verdict in this pedestrian-car accident case (exonerating defendant driver from any comparative fault) should have been granted. Defendant testified she saw persons in the road about 100 yards ahead but did not slow down. When she realized she was going to hit someone she […]

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