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REVERSIBLE ERROR TO REFUSE TO ALLOW IN EVIDENCE THE DETECTIVE’S RECORDED STATEMENTS MADE TO DEFENDANT BEFORE THE MIRANDA WARNINGS AND HER CONFESSION, STATEMENTS WERE NOT OFFERED FOR THEIR TRUTH BUT RATHER TO SHOW DEFENDANT’S STATE OF MIND AND TO EXPLAIN WHY SHE CONFESSED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Mulvey, reversing defendant’s conviction, determined the jury should have been allowed to hear and see the videotaped statements made by the detective to the defendant prior to the Miranda warnings and defendant’s confession to the possession of drugs found in her house. Defendant’s son had also […]

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VILLAGE CODE ENFORCEMENT OFFICER CHARGED WITH RECEIVING A BRIBE AND ENDANGERING THE PUBLIC HEALTH IN CONNECTION WITH THE DEMOLITION OF A BUILDING CONTAINING ASBESTOS, CHARGES SHOULD NOT HAVE BEEN DISMISSED IN THE INTEREST OF JUSTICE PURSUANT TO CPL 210.40 (THIRD DEPT).

The Third Department, reversing Supreme Court, determined Supreme Court abused its discretion in dismissing a case in the interest of justice pursuant to Criminal Procedure Law 210.40. Defendant, a village code enforcement officer, was charged (along with the village mayor) with receiving a bribe and endangering the public health (among several other charges) in connection […]

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COUNTY COURT’S FAILURE TO MAKE A SEARCHING INQUIRY WHEN DEFENDANT INDICATED HE WISHED TO REPRESENT HIMSELF REQUIRED REVERSAL, DESPITE PRESENCE OF STANDBY COUNSEL (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined the trial court failed to make a searching inquiry after defendant indicated he wished to represent himself. The trial was conducted with standby counsel: County Court failed to conduct a sufficient searching inquiry on the record here. At arraignment, defendant unequivocally expressed his intention to forgo his right to […]

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DEFENDANT’S STATEMENT AT SENTENCING THAT HE DIDN’T MEAN TO HURT THE VICTIM, RAISING THE POSSIBILITY OF THE JUSTIFICATION DEFENSE, REQUIRED FURTHER INQUIRY BY THE COURT, PLEA VACATED DESPITE FAILURE TO MAKE POSTALLOCUTION MOTION (THIRD DEPT).

The Third Department, reversing defendant’s conviction, determined defendant’s statement at sentencing that he didn’t mean to hurt the victim required further inquiry by the court: Although the record does not disclose that defendant made the appropriate postallocution motion required of him to adequately preserve this claim for our review … , we find that defendant […]

FAILURE TO ALLEGE AN OVERT ACT IN THE CONSPIRACY COUNT REQUIRED REVERSAL AND DISMISSAL OF THE COUNT AS JURISDICTIONALLY DEFECTIVE (THIRD DEPT).

The Third Department reversed defendant’s conviction for conspiracy because the indictment did not allege an overt act: We find merit in defendant’s pro se contention that count 4 of the indictment, charging him with conspiracy in the second degree, must be dismissed. Pursuant to Penal Law § 105.20, “[a] person shall not be convicted of […]

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THE FACT THAT PLAINTIFF ATTORNEY (1) WAS AN AT-WILL EMPLOYEE AND (2) MAY NOT BE PAID WITHIN ONE YEAR DID NOT RENDER THE ORAL CONTRACT ENTITLING PLAINTIFF TO LEGAL FEES VOID UNDER THE STATUTE OF FRAUDS, BREACH OF IMPLIED CONTRACT AND UNJUST ENRICHMENT CAUSES WERE PROPERLY PLED IN THE ALTERNATIVE (FIRST DEPT).

The First Department determined plaintiff’s breach of an oral contract cause of action properly survived a motion to dismiss. Plaintiff was an at-will employee of a law firm and sought to enforce an oral agreement entitling him to 50% of the fees generated by work he brought in. In addition the court noted that the […]

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PLAINTIFF’S MOTION TO AMEND HER COMPLAINT TO ADD NAMES OF POLICE OFFICERS SUED AS JOHN DOES SHOULD NOT HAVE BEEN GRANTED, THE OFFICERS ARE NOT UNITED IN INTEREST WITH THE CITY DEFENDANT, FAILURE TO NAME THE OFFICERS WAS NOT A MISTAKE, AND PLAINTIFF FAILED TO MAKE A DILIGENT EFFORT TO LEARN THE OFFICERS’ NAMES BEFORE THE STATUTE OF LIMITATIONS EXPIRED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff’s motion to amend her complaint to add the names of police officers originally sued a John Does should not have been granted: The motion court erred in granting plaintiff leave to amend her complaint and substitute the officers’ names under the relation back doctrine, because the officers […]

PLAINTIFF CAN BE ACCOMPANIED BY A NONLEGAL REPRESENTATIVE TO A DEFENSE PHYSICAL EXAM (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff can be accompanied by a nonlegal representative at a defense physical examination: Defendants concede that, under this Court’s recent decision in Santana v Johnson (154 AD3d 452 [1st Dept 2017]), they can no longer argue that plaintiff was required to show “special and unusual circumstances” to be permitted to have […]

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CAUSE OF ACTION ALLEGING DEFENDANTS PERFORMED AN UNWANTED C-SECTION BIRTH STATES AN INTENTIONAL TORT SUBJECT TO THE ONE YEAR STATUTE OF LIMITATIONS, THE PUBLIC HEALTH LAW DOES NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST HOSPITALS (SECOND DEPT).

The Second Department determined several distinct issues (not all summarized here) that arose from a lawsuit alleging the defendant doctors and hospital performed a c-section birth against plaintiff’s wishes. The cause of action based upon defendants’ performing an unwanted procedure alleged an intentional tort and, based upon the one-year statute of limitations, was untimely. The Public Health […]

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DISTRIBUTING A LETTER WHICH DEALT WITH RELIGIOUS (NATION OF ISLAM) INFORMATION DID NOT VIOLATE ANY PRISON GUIDELINES OR POLICIES, MISBEHAVIOR DETERMINATION ANNULLED (SECOND DEPT).

The Second Department annulled the misbehavior (smuggling) determination. Petitioner was accused of smuggling a letter. But part of petitioner’s duties was sending out religious information (Nation of Islam). The letter was religious in nature. The charges did not allege the violation of any particular guideline or policy which was violated: The charges against the petitioner […]

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