1. People v Owens, 164 Misc.2d 239 (Sup. Ct., Kings Co.,
October 17, 1994); 624 N.Y.S.2d 528 (Criminal Term - Part 6)
The court found that the defendant could not raise the defense of legal impossibility to a charge of Criminal Sale of a Firearm (Penal Law § 265.11) where the firearm was sold to a confidential operative. Confidential operatives are not specifically designated by the legislature as persons licensed to carry a firearm (Penal Law art. 400) or persons exempted from prosecution for possession of a firearm (Penal Law § 265.20).
2. People v McIntyre, 168 Misc.2d 556 (Sup. Ct., Kings Co.,
January 22, 1996); 640 N.Y.S.2d 386; NYLJ March 11, 1996, p.30, col. 5
(Criminal Term - Part 6)
In a bail source hearing, pursuant to CPL 520.30, the court held that the People are required to make an initial showing of reasonable cause to justify a hearing, but the ultimate burden of persuasion, that the bail offered complies with the requirements of the bail statute, rests with defendant. The court found that the defendant failed to satisfy his burden of showing by a preponderance of the evidence that the bail offered complied with the requirements of the bail statute, and disapproved of the bail on the ground that the bail package contravened public policy.
3. People v Mohammed, 171 Misc.2d 130 (Sup. Ct., Kings Co.,
November 6, 1996); 653 N.Y.S.2d 492; NYLJ December 5, 1996, p. 32, col. 1 (Criminal Term - Part 6)
In a habeas corpus proceeding involving an increase in bail, the court found that superior court appropriately set bail for defendant, upon an indictment, in an amount higher than the amount set by the local criminal court which arraigned defendant on the felony complaint, since superior court in issuing the CPL 510.10 securing order - its first discretionary release determination in the case -conducted an inquiry showing that its determination to exercise its discretion in setting the higher bail was based upon consideration of the criteria in CPL 510.30. The court determined that the bail was not excessive as a matter of law nor constituted an abuse of discretion.
4. People v Carthen, 171 Misc.2d 754 (Sup. Ct. Kings Co.,
December 6, 1996); 655 N.Y.S.2d 245 (Criminal Term - Part 6)
The court found that a defendant may not withdraw a guilty plea whereby defendant was to be sentenced as a first time felony offender pursuant to a plea bargain rather than a persistent felony offender, where the defendant misrepresented his criminal history.
5. Matter of Maimonides Medical Center (Guia G.), 173 Misc.2d 111 (Sup. Ct. Kings Co. March 17, 1997); 660 N.Y.S.2d 614; NYLJ April 22, 1997,
p. 30, col. 2 (Special Term-Part 77; Mental Hygiene Unit)
The court found that the hospital’s application for authorization to retain an involuntary patient, although not timely commenced within the 60-day time frame set forth in Mental Hygiene Law § 9.33(a), may still be considered by the court since the 60-day time frame does not constitute a Statute of Limitations which bars judicial intervention and mandates automatic dismissal.
6. People v Dunn, 175 Misc.2d 137 (Sup. Ct. Kings Co.,
November 5, 1997); 667 N.Y.S.2d 877; NYLJ November 20, 1997, p. 30, col. 5 . (Criminal Term - Part 6)
The court held that the defendant, who pleaded guilty to first degree sexual abuse in 1978 and was promised a sentence of 5 years probation subject to a favorable probation report but failed to appear for sentencing and was not arrested and did not return to court until 18 years later, at which time the People recommended a 3 ½ to 7 years sentence, may not withdraw his guilty plea, and would be sentenced in accordance with the proper statutory sentencing guidelines.
7. People ex rel. Abraham J. v Sarkis, 175 Misc.2d 433 (Sup. Ct. Kings Co.
Dec. 10, 1997); 688 N.Y.S.2d 435; NYLJ December 23, 1997, p. 33, col. 5. (Special Term-Part 11; Mental Hygiene Unit)
The court found that the defendant, an insanity acquittee, who is detained at respondent psychiatric center pursuant to CPL 330.20 and is an adherent of an ultra-observant Hasidic branch of Judaism, is not entitled to furlough or additional accommodations to observe the Holy Days, where the respondent already provides adequate accommodations that pass constitutional muster.
8. Dosch v Surace, NYLJ April 17, 1998, p. 34, col. 5.
(Civil Term - IA, Part 1)
The court denied the plaintiff’s motion to set aside the jury verdict on the ground that defendant had not overcome the inference of negligence created by an unexplained rear-end automobile collision, where the defendant proffered an explanation from which a reasonable jury could find that the defendant was not negligent.
9. Schall v Schecterman, Decision Summaries NYLJ September 24, 1998,
p.21 col. 3 (QDS: 42700281) (Civil Term - 1A Part 27)
In a personal injury action, the court denied the plaintiff’s motion to set aside the jury’s verdict where the verdict was supported by sufficient evidence.
10. In the Matter of Alton Dunk, NYLJ December 3, 1998 p. 32, col. 1
(Special Term-Part 11; Mental Hygiene Unit)
The court found that an application for discharge, pursuant to CPL 330.20(13), is not rendered moot by expiration of the underlying Order of Conditions. A discharge application may be denied and the Order of Conditions extended if the court finds that discharge would be inconsistent with the safety and welfare of the community and the defendant, even if the defendant is no longer mentally ill.
11. Richards v. Forest City Enterprises Inc., NYLJ March 5, 1999, p.32, col. 6
(QDS:04700836) (Civil Term-Part 27)
Despite the affidavit of five jurors, the court denied the plaintiff’s motion to set aside the jury verdict in favor of the defendant. In the court’s opinion, the motion constituted an impermissible attempt to impeach the jury verdict.
12. Lombardo v Ford Motor Co., NYLJ March 25, 1999, p. 32, col. 6
(QDS:42700902) (Civil Term-Part 27)
The court denied a post-jury verdict motion by the prevailing defendant for costs claimed under the offer to compromise statute (CPLR 3221). At issue was the nature and scope of recovery for costs and disbursements. The court found that a failure to present or establish any express provision of law to support the claim for reimbursement of $24,836 warranted denial of the motion, and that a contrary decision would constitute a dangerous and unwise precedent. The Legislature was called upon for remedial clarification.
13. Lugaro v Lugaro, NYLJ June 22, 1999, p. 34, col. 5 (QDS:42310034)
(Civil Term-Part 27)
In an action, inter alia, to declare the non-paternity of the plaintiff with respect to the natural child of the female defendant, the court denied the plaintiff’s motion for a default judgment. The court found that the allegations contained in the plaintiff’s complaint were insufficient to support a declaration of non-paternity and that the plaintiff had failed to rebut the strong presumption of legitimacy that attaches to a child born during a marriage.
14. WHC, Inc. v. Carbone, NYLJ February 2, 2000, p. 33, Col. 1 (QDS:42702061)
(Civil Term-Part 27)
Corporate plaintiff was formed by individual defendant to buy and sell real estate. Defendant served as president. Plaintiff bought certain property at a foreclosure sale, which defendant then sold to co-defendant. Plaintiff sought to set aside the conveyance and to be adjudicated the lawful owner, arguing that the defendant’s conveyance of the property was an ultra vires act; that defendant lacked the legal authority to execute the deed on behalf of the corporation and that defendant never obtained approval of the shareholders or directors. The court granted co-defendant buyer’s motion to dismiss the complaint, finding a defense based on documentary evidence. Buyer had the right to rely on defendant’s apparent authority. Also, the complaint failed to sufficiently assert a cause of action under the Business Corporation Law or any other legal authority.
15. Katlowitz v. Halberstam, NYLJ February 22, 2000, p. 27, Col. 5 (QDS:42437037)
Following a four day evidentiary hearing, the court was called upon to resolve (a) the reasonableness of attorney’s fees claimed by the plaintiff- attorney to be owed to him by the defendant-clients and (b) the validity of two confessions of judgment executed by the defendants in blank, at the request of the plaintiff. The court found that the plaintiff was not entitled to recover any additional legal fees and further vacated the confessions of judgment. As a matter of first impression, the court concluded that the defendants, although not third party creditors, have CPLR 3218 standing, vis-a-vis their status as clients of members of the Bar, to challenge deficiencies in the affidavits for the confessions of judgment. Under the facts of this case, the defendants could challenge the confessed judgments.
16. Larkin v. City of New York, NYLJ MARCH 14, 2000, p. 29, Col. 2
Plaintiff alleged that she fell and was injured due to defendant City’s failure to correct or repair a cracked sidewalk. She sought to admit into evidence, through the testimony of a New York City Department of Transportation employee, a map prepared by Big Apple Pothole and Sidewalk Protection Committee Inc. and filed with the department. This was to establish prior written notice to the City of the alleged defective condition under the “Pothole Law.” The City moved to preclude
plaintiff from introducing such map, arguing that only a witness from Big Apple could lay a proper foundation for the map’s admissibility. The City also claimed that the map constituted hearsay. The court denied the City’s motion, saying in part that the map was not hearsay, as it was introduced to prove notice, not to prove existence of a particular defect.
17. Levy v Levy, NYLJ March 22, 2001, Page 28, Col. 2
The narrow issue presented is whether Section 72 of the Domestic Relations Law is unconstitutional. The court was presented with the question of whether the fundamental right of a fit parent to determine what is in her children’s best interest overrides or nullifies a grandparent’s allowance of visitation under the statute. In applying the holding enunciated by the United States Supreme Court in Troxel v Granville, (530 U.S.57), this court found the statute to be unconstitutional and dismissed the paternal grandmother’s petition to compel visitation with the five minor children of her deceased son.
18. Mitchell v. Coney Island Site 4A-1 Houses, Inc., NYLJ June 5, 2002, Page 23, Col. 1
Plaintiff received Medicaid and public assistance benefits prior to settling her personal injury action against defendant for $260,000. The New York City Department of Social Services (DSS) sought reimbursement of a $28,668 Medicaid lien, a $8,881 public assistance lien and a $2,531 public assistance claim. Plaintiff, arguing that DSS’ reimbursement claims were contingent upon the success of her action against defendant, contended that the court should reduce the Medicaid lien by one-third toward her
attorney’s fees and bar DSS’ attempts to recoup the liens from the settlement proceeds. The court determined the DSS held subrogation rights entitling its placement of a lien on personal injury suits brought by a Medicaid recipient against the responsible party. Additionally, under Social Services Law §104-b, the DSS has a lien for the total amount of public assistance and care furnished on and after the date when injuries were incurred.
19. Amankwaah v. City of New York, NYLJ July 1, 2002, Page 31, Col. 5
Plaintiff was awarded damages for personal injuries sustained when his bicycle struck a “hole” surrounding a traffic control detector. Defendant City moved, under Civil Practice Law and Rules 4404(a), to set aside the verdict as excessive and dismiss the case. Prior to trial, plaintiff had subpoenaed the New York City Department of Transportation (DOT) for records as to the location, repair and maintenance of traffic control systems. The DOT represented that it had no records, including “contracts,” for five years prior to plaintiff’s accident. During trial, plaintiff discovered that defendant had contracted for the installation, maintenance and repair of all traffic control equipment and devices within the county. The court held that it had properly directed verdict in plaintiff’s favor because defendant had engaged in spoliation of evidence and thwarted plaintiff’s discovery attempts. Finding the jury award excessive, the court ordered a new trial on damages unless plaintiff consented to decrease the verdict.
Former member, director and/or officer of: Brooklyn Legal Services Corporation, Grand Street Merchants' Association, Grand Street District Management Association, Board of Directors of The Holy Cross High School, The Society for the Prevention of Cruelty to Children, The American Lung Society, Knights of Columbus, Coach and Manager of Little League Baseball, Kappa International Chapter of the Alpha Beta Chi Fraternity in New York City, New York State Trial Lawyer's Association, New York State Bar Association, the Brooklyn Women's Bar Association, the Association of Judges of Hispanic Heritage; President of the Tri-State Chapter of the Asociacion de Antiguos Alumnos del Colegio San Ignacio de Loyola, the Jesuit High School of Puerto Rico; the Puerto Rican Bar Association; the Brooklyn Bar Association’s Pro Bono, Continuing Legal Education, Grievance, Lawyer Referral and Outreach to Hispanic Bar Committees. First Hispanic Trustee of the Brooklyn Bar Association and the Brooklyn Bar Association Foundation Inc. Assigned Counsel 18-B Felony Trial Panel, Kings County. From 1985 until 1991, member of the Character and Fitness Committee of the Appellate Division, Second Department. Present member Brooklyn Bar Association, Puerto Rican Bar Association, Association of Judges of Hispanic Heritage, Municipal Club of Brooklyn. Fellow-New York Bar Foundation.
Second Hispanic ever to be elected Justice of the Supreme Court of the State of New York in the Second Judicial Department (1991).
First Hispanic ever to be appointed as an Associate Justice of the Appellate Division, Second Department, in the one-hundred-six year history of the court (1896-2002).
First Hispanic member of the Board of Directors of the St. John’s University School of Law Alumni Association and presently on its Executive Board and Long Range Planning Committee.
Founder and first President of the Brooklyn Chapter of the St. John’s University School of Law Alumni Association. Faculty Advisor to the School of Law’s Latin American Law Students Association (LALSA). Charter Member, Board of Governors, St. John’s University.
Adjunct faculty professor at St. John’s University School of Law. Presently, teaching Appellate Advocacy and previously taught courses in Criminal Procedure and Trial Advocacy Skills. Lectured in Continuing Legal Education programs at: St. John’s University School of Law (1999-2004); for the New York State Unified Court System’s/New York State Judicial Institute (2000-2001) Legal Update Seminar for Court Attorneys and (2003-2004)Common Errors on Appeal; for the New York Guard at Camp Smith; the New York State Bar Association. Instructor in Civil Practice Law and Rules, Court Clerk Development Program.
Commissioned with the rank of Lieutenant Colonel in the New York State Division of Military and Naval Affairs, New York Guard.
Featured speaker: Brooklyn Bar Association forum on “Judicial Selection The Path To Equal Representation”; St. John’s University’s Liberty Partnership ceremonies; St. John’s University’s Organization of Latin American Students (OLAS) and the Committee on Latin America and Caribbean Studies; panel discussions sponsored by “Not Just Blacks and Jews in Conversation”, at the Museum of Jewish Heritage; at Widener University; at John Jay College of Criminal Justice; at Binghamton University; Career Day program “Believing And Achieving For The Future - Choices And Challenges” at William H. Prescott School, Public School 93; Fourth Annual Dinner of the Latino Lawyers’ Association of Queens County. Hosted, at the request of the General Consul and Ambassador of Spain, a delegation of judges from Spain’s “Consejo General del Poder Judicial”, which included a visit to the Appellate Division with Presiding Justice Guy James Mangano; co-hosted a delegation of French jurists with the Ecole Nationale de la Magistrature on their visit to the Appellate Division, Second Judicial Department; and on “Humanism in the Practice of Law” at the New York County Lawyers’ Association, Tort Law Section, reception.
Recipient of the following: New York City Council “Proud City Award” medal (1991); Proclamation from the Municipal Assembly of the City of Bayamon, Puerto Rico; keys to said City from the Hon. Jose Ramon Rivera, Mayor; Resolution from the Commonwealth of Puerto Rico House of Representatives (1992); recognition awards from the St. John's University School of Law B.A.L.L.S.A.(1994, 1997); invited guest and participant in the 40th Annual National Security Seminar at the United States Army War College, Carlisle Barracks, Pennsylvania (1994); Distinguished Judiciary Award from The Kings County Chapter of the Catholic Lawyers Guild, Diocese of Brooklyn (1995); Alumni Leadership Award from the St. John’s University School of Law Student Bar Association Leadership Institute (1997); guest honoree at the Prospect Park Alliance/ Boricua Festival Committee in recognition of his leadership in Brooklyn’s Puerto Rican community (1999); New York County Lawyers’ Association, Tort Law Section, Judicial Sunshine Award for scholarship, public service and exemplary contribution to the rule of law; the St. John’s University Alumni Achievement Medal; and the St. John’s University School of Law Alumni Association, Brooklyn Chapter, Hon. Guy James Mangano Alumni Achievement Award (2001); St. John’s University School of Law, Latin American Law Students Association Award (2002); Citation from the President of the Borough of Brooklyn (2002); The Honor, Integrity and Independence Award presented jointly by the Tort Law Section of New York County Lawyers Association and the Judicial Independence Committee
of New York State Trial Lawyers Association 2003; from the Puerto Rican Bar Association, The Emilio Nunez Award for Judicial Excellence (2003); The Benjamin N. Cardozo School of Law, Latin American Law Students Association, Most Influential Latino in the Law Award (2003), Brooklyn Bar Association Foundation, Inc. Award for Outstanding Achievement in the Science of Jurisprudence and Public Service (2004).