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The defendant is charged with Assault, Harassment; Criminal Possession of a Weapon and Unlawful Possession of an Air Pistol. The charges arise out of an incident that allegedly occurred inside an apartment. At that time, the People allege that the defendant grabbed the woman by her arm, pushed her against a wall and choked her, causing substantial pain to her arm and neck and a bruise to her arm. Thereafter, a police officer allegedly observed that the defendant possessed one black handgun and one air pistol inside of his bedroom closet. The defendant allegedly stated, in sum and substance that the cops found a gun in the closet for protection. The gun was never loaded and was never fired.

The defendant moves to dismiss the weapons charge and the Administrative Code charge as facially unconstitutional and unconstitutional as applied. He also moves for suppression and preclusion of evidence. For the reasons that follow, the County Court holds that neither Penal Law (PL) nor Administrative Code (AC) violates the Second Amendment and neither is unconstitutional as applied to the defendant.

The People respond that the defendant has not overcome his heavy burden of proving the laws’ invalidity beyond a reasonable doubt. They argue that Penal Law have already been found constitutional against Second Amendment challenges, and analyze why these decisions are correct and the defendant’s arguments are incorrect. They also argue that air pistols are not firearms; therefore, Administrative Code is valid when analyzed under either the rational basis or intermediate scrutiny test.

Finally, the Court has permitted the City of New York to file a brief as amicus curiae. The City defends its policies and procedures for obtaining a firearms license. It also argues that its ban on the possession of air pistols is constitutional, both because air pistols are not firearms and because, even if they were, the City’s restrictions on them do no implicate the core Second Amendment right identified by the Supreme Court.

Penal Law states, in relevant part, that a person is guilty of criminal possession of a weapon in the fourth degree when he possesses any firearm. Penal Law specifically provides for the issuance of a license for a pistol or revolver, other than an assault weapon or a disguised gun, for a householder to have and possess in his dwelling. The general statutory requirements for a license are that an applicant be 21 years of age or older, of good moral character, who has not been convicted of a crime or serious offense or had a license revoked, who is not disqualified by reason of mental illness or the existence of an order of protection, and concerning whom no good cause exists for the denial of the license. Thus, any person to whom a license has been issued may lawfully possess a firearm in his or her home. Indeed, the City affirms that, in 2009, there were 1,141 new applications for premise residence licenses, and 826 of these applications were approved.

The defendant argues that New York’s licensing requirements violate the Second Amendment for a number of reasons. He claims over breadth, because there is no exemption for maintaining a firearm in the home for the purpose of self-defense and because, under PL, those convicted of felonies or serious offenses cannot obtain licenses. He argues that the licensing scheme is arbitrary and capricious, because the availability of a gun license is under the complete control and virtually unreviewable discretion of the New York City Police Commissioner. He argues that requiring all successful applicants to be of good moral character’ is too vague to withstand any level of constitutional scrutiny. Without actually acknowledging that decisions of the Commissioner are reviewable by the courts, defendant then argues that the review process is infirm because the Appellate Divisions have never required the N.Y.P.D. to present anything more than a rational basis for denying a gun license. Finally, he claims that the licensing scheme unconstitutionally prevents indigent citizens from legally possessing firearms because of the cost of the non-refundable application fee.
The defendant’s claim that there is no exemption in the statute for maintaining a firearm in the home for self-defense is simply wrong. Moreover, the defendant never applied for a firearms license, as both the People and New York City point out and as the defendant himself ultimately concedes, and he has not established that it would have been futile for him to do so. Thus, his arguments challenging New York’s firearms licensing rules are speculative at best, because he cannot show that any of the rules that he singles out would have prevented him from obtaining a firearms license had he actually applied for one. A person to whom a statute properly applies can’t obtain relief based on arguments that a differently situated person might present. A closely related principle is that constitutional rights are personal and may not be asserted vicariously.

To Be Con’t………
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A man is charged with attempted assault in the third degree, menacing in the third degree and harassment in the second degree.

The man then moved to dismiss the underlying action on the grounds that the domestic incident report was insufficient to convert the criminal complaint into misdemeanor information.

The matter stemmed from an incident where the complaining witness was slapped by the man in her eye and the man did hold her neck.

The complaining witness further stated that the above-described actions made her suffer a red eye, facial swelling, and substantial pain, to fear further physical injury and to become alarmed and annoyed.

Subsequently, the complainant served and filed a report to convert the misdemeanor complaint into information. The report consists of two pages, the first page was prepared by a police officer and the second page was prepared by the complaining witness. The first page of the report identifies the man, includes specific information as to the time and place of the alleged incident, the relationship between the man and the complaining witness and is signed by the police officer. The second page of the report includes a written statement signed and sworn to by the complaining witness as the victim and signed by the same police officer as the witness or officer.

The man argues that the domestic incident report served and filed by the complainant was insufficient to convert the misdemeanor complaint into information. The man argues that the second page of the report does not include the man’s name. The man also argues that although the first page of the report does identify him, it does not meet the requirements of the law for a supporting statement. The man further argues that the complainant never converted the misdemeanor complaint into an information and that they are now outside of the speedy trial time period to bring the underlying action to trial.

In opposition, the complainant argues that both pages of the report are intended to be read together as a two page document and that the report is signed by the complaining witness. The complainant argue that even though only the second page of the report includes the complaining witness’s handwriting and signature, the top portion of the second page reads as the second page and therefore both pages of the report should be read together as a whole.
Initially, the court finds that although the man’s motion to dismiss the underlying action for failure to convert the misdemeanor complaint into information was made more that 45 days after the man’s arraignment on the misdemeanor complaint, there is good cause for determining the instant motion on its merits.

In the instant motion, the man does not argue that the accusatory document is jurisdictionally facially insufficient on any of the charges, but only that the report was insufficient to convert the non-hearsay factual allegations in the criminal complaint for the purpose of converting the misdemeanor complaint into information.

As a result, the man’s instant motion to dismiss is subject to the timeliness requirements. The man indicates in his moving papers that the first appearance following the complainant’s filing of the report, the man objected to the conversion of the misdemeanor complaint on the grounds that the complaining witness’s written statement on the second page of the report did not name the man as the perpetrator.

The court noted that the action sheet does not indicate that the man made any such objection, however, the complainant did not argue with the man’s claim that he objected to the conversion of the misdemeanor complaint into information. Further, the man did request a motion schedule on the next adjourn date to make the instant motion to dismiss. As a result, the court finds that there is good cause to determine the instant motion on its merits as the man promptly moved to dismiss the instant action after the complainant filed the report to convert the misdemeanor complaint into information.

Subsequently, the court disagrees with the man’s argument.

Initially, the court finds that the information provided by the complaining witness in her written statement clearly refers to the same incident as the accusatory document. The complaining witness both swore to the written statement on the report and is identified as the informant in the document. The complaining witness also states in her written statement that the incident occurred at 3:30 p.m., which is the same date and time of occurrence alleged in the accusatory document.

Further, the court disagrees with the man’s argument that the first and second pages of the report cannot be read together as a single document to convert the accusatory document into a misdemeanor information.

Sources revealed that the appellate term found that a misdemeanor information was facially sufficient based upon the information provided in the two-paged supporting statement. The appellate term also found that the man’s argument that the information was facially insufficient because he was not adequately named in the supporting statement, to be without merit indicating that when read together, both pages of the supporting statement clearly identify man.

Sources revealed that even if the first page of the report was prepared by a police officer, it clearly refers to the same incident as the complaining witness’s written statement and as alleged in the misdemeanor complaint that allegedly occurred at around 3:30 p.m. Although the non-hearsay basis for converting the misdemeanor complaint into information comes from the complaining witness’s written statement, which does not specifically include the man’s name, both pages of the report may be read together as a single document and when read together they adequately identify the man as the perpetrator of the alleged crimes. Further, the fact that the complaining witness’s written statement portion of the report does not specifically include the man’s name does not render it defective as a supporting statement.

As such, the court finds that the complainant converted the accusatory document into misdemeanor information by submitting a report. As a result, the court will calculate the speedy trial time accrued by the complainant.

Based on records, the man bears the initial burden of demonstrating that the complainant had exceeded the applicable time to bring the action to trial. If the man makes said showing, the burden shifts to the complaining to establish that certain periods of time should be excluded from the calculation of delay. It is the man’s duty, either in its initial submission or in a reply to the complainant’s opposition, to draw the court’s attention to the discrete periods that the man claims should have been chargeable to the complainant.

The man is accused of multiple charges and at least one of the charges is a misdemeanor punishable by a sentence of more than three months in jail. Then, the court stated that the complainant must be ready for trial within 90 days of the commencement of the criminal action, minus any excludable periods.

The court further notes that the man has not submitted any reply papers nor included in their moving papers any substantive legal arguments, apart from his position that the report was insufficient to convert the misdemeanor complaint into an information, as to why certain periods of time should be charged to the complainant.

Consequently, the man’s motion to dismiss the underlying criminal matter is denied.
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In this case, appellant filed an appeal, in six related family offense proceedings pursuant to Family Court Act article 8, from (1) three orders of protection of the Family Court, and entered in Nassau County, which, after a hearing, upon finding that she had committed certain family offenses, inter alia, directed her to stay away from the respondents for a period of two years, and (2) three orders of dismissal of the same court, which, after a hearing, dismissed her petitions.

A Nassau County Order of protection Attorney said that in March 2009, respondent and her sons filed three separate family offense petitions seeking the entry of orders of protection in favor of them and against the appellant, respondent’s mother, and her sons’ grandmother. The alleged family offenses included, inter alia, assault, harassment, and menacing. In their respective petitions, the respondents described how they were related to the appellant and asserted that the parties all resided together in a home. The petitions detailed certain incidents which allegedly occurred on the island of Anguilla. According to the respondents, the appellant pushed the respondent to the floor twice, causing her to hurt her back and hit her head. The appellant allegedly was screaming, yelling, and cursing at Annette during the assault. In addition, the appellant allegedly used a glass bowl to strike the son on the head, causing injuries. Further, the appellant allegedly chased the other son with a meat cleaver and threw an ashtray at him, which hit him in the back.

Thereafter, the appellant filed three of her own family offense petitions seeking orders of protection in her favor and against the respondents. The appellant alleged that, the respondents committed the family criminal offenses of, inter alia, aggravated harassment in the second degree, harassment in the first degree, attempted assault, and menacing in the third degree.
During an initial appearance before the Family Court, the appellant’s counsel objected to the court’s exercise of subject matter jurisdiction because the alleged offenses occurred in Anguilla. The Family Court held that the fact that this took place in the West Indies is no different from it taking place in Pennsylvania, Virginia, or Vermont. They’re all residents of Nassau County and they’re entitled to protection from future occurrences. Family Orders of Protection… are to prevent further hostility and further assault, attempted assault, etc.

After a hearing, the Family Court found that the respondents proved by clear and convincing evidence that the appellant had committed certain family offenses against them and granted the respondents’ respective petitions. The Family Court also entered three two-year orders of protection on behalf of the respondents and against the appellant. The orders of protection directed the appellant to stay away from each of the respondents and to refrain from assaulting, stalking, and similar conduct. In addition, the Family Court issued three orders of dismissal which dismissed the appellant’s three petitions.

The issue to be resolved in this case is whether the Family Court has subject matter jurisdiction over family offense proceedings.

As a threshold matter, it is evident that the Family Court acquired personal jurisdiction over the appellant, as she appeared before the Family Court without challenging personal jurisdiction. Additionally, the appellant affirmatively sought the entry of orders of protection against the respondents. Further, venue was appropriate inasmuch as the petitions were filed in the Family Court, Nassau County, the county where the parties resided.

The appellant’s contentions provide this Court with an opportunity to address an issue which does not appear to have been previously addressed by an appellate court in this state: the limits of the subject matter jurisdiction of the Family Court with respect to family offenses which occurred outside of the state, and even outside of the country.

The Family Court is a court of limited jurisdiction constrained to exercise only those powers conferred upon it by the state Constitution or by statute. Article VI of the New York State Constitution establishes “[t]he family court of the state of New York” and “enumerates the powers thereof” Included within the actions and proceedings over which the Family Court has been given subject matter jurisdiction are family offense proceedings. Pursuant to the New York State Constitution, family offense proceedings are to determine “as may be provided by law crimes and offenses by or against minors or between domestic spouses or between parent and child or between members of the same family or household”. In light of the provision stating “as may be provided by law,” the grant of jurisdiction to the Family Court over family offense proceedings is permissive and requires legislative action to be implemented.

In that regard, Family Court Act article 8 delineates the parameters of the Family Court’s subject matter jurisdiction. The Family Court Act and the Criminal Procedure Law provide the criminal court and the Family Court with “concurrent jurisdiction” over certain enumerated criminal offenses when allegedly committed by one family member against another. Thus, while a family member may choose to seek redress for a family offense in the Family Court, a parallel criminal proceeding also is available. Indeed, the Legislature has specifically authorized a petitioner to commence a family offense “proceeding in either or both Family Court and criminal court”. Moreover, each court has the authority to issue temporary or final orders of protection.

As relevant here, Family Court Act § 812(1) provides: “Jurisdiction. The family court and the criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivision one of section 130.60 of the penal law, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault between spouses or former spouses, or between parent and child or between members of the same family or household except that if the respondent would not be criminally responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive jurisdiction over such proceeding.

Notwithstanding a complainant’s election to proceed in family court, the criminal court shall not be divested of jurisdiction to hear a family offense proceeding pursuant to this section.”
There is no evidence that the Legislature, by enacting concurrent jurisdiction between the Family Court and the criminal court in article 8 proceedings, ever intended to decrease the remedies available to domestic violence victims. The Legislature made its most recent major amendments to Family Court Act article 8 when it enacted the Family Protection and Domestic Violence Intervention Act of 1994, the purpose of which was to establish “stronger and more aggressive court intervention in family offense cases”. The 1994 Act eliminated the three-day choice of forum provision which had caused “victims of family offenses [to be] barred from initiating simultaneous proceedings in the family court and in the criminal court,” and had consequently allowed perpetrators of domestic violence to “escape criminal prosecution whenever the victim s[ought] civil redress”. The 1994 Act further established “a true concurrent jurisdictional provision, enabling the petitioner to proceed simultaneously in both forums.
There is no indication that the Legislature intended to prohibit the Family Court from exercising jurisdiction over family offenses where the alleged acts occurred in another state or country. As discussed above, the Family Court and the criminal court have concurrent jurisdiction over family offenses. However, a question that arises is whether the geographic or territorial limitation on the jurisdiction of the criminal court also limits the jurisdiction of the Family Court. Criminal Procedure Law § 20.40(1)(a) provides, in pertinent part, that a person may be convicted in an appropriate criminal court of a particular county, of an offense when conduct occurred within such county sufficient to establish an element of such offense. The Family Court is not a criminal court. Whereas the criminal court’s subject matter jurisdiction over family offenses is limited by geography, there is no statutory provision which states that such a geographic limitation also applies to the Family Court. Although the phrase “concurrent jurisdiction” is left undefined in the Family Court Act, the Criminal Procedure Law, and the CPLR, that phrase has been defined as:

As noted above, nothing in the state Constitution, Family Court Act § 812, or the legislative history of Family Court Act article 8 requires the predicate acts of a family offense to have occurred in a particular county, state, or country in order for the Family Court to possess subject matter jurisdiction. Thus, to the extent that the appellant contends that the geographic limitation on the jurisdiction of the criminal court also applies to limit the jurisdiction of the Family Court over family offense proceedings, we hold that contention to be without merit. This holding is in accord with the functions of article 8, which include attempting to stop the violence, ending the family disruption, and obtaining an order of protection.
The Family Court properly dismissed the appellant’s petitions.

Although the three orders which dismissed the appellant’s petitions stated the dismissals were due to the appellant’s “failure to state a cause of action,” those orders also provided that the Family Court dismissed the appellant’s petitions following “an examination and inquiry into the facts and circumstances of the case, and after hearing the proofs and testimony offered in relation thereto.” Therefore, contrary to the appellant’s contentions, the Family Court was not required, inter alia, to accept the appellant’s allegations as true and determine whether the facts, as alleged, fit into a cognizable cause of action.

The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and that court’s determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed if supported by the record.
Here, the Family Court was presented with conflicting testimony as to whether the respondents, among other things, assaulted or attempted to assault the appellant during the course of the subject incident.

The Family Court’s determination that the appellant failed to establish that a family offense was committed against her was based upon its assessment of the credibility of the parties, and is supported by the record. Accordingly, the Family Court properly dismissed the appellant’s petitions.

Moreover, the Family Court did not improvidently exercise its discretion in entering the three orders of protection, to remain in effect up to and including June 23, 2011, directing the appellant to, inter alia, stay away from the respondents (see Family Ct Act § 842). While the orders of protection, in effect, require the appellant to also stay away from her home because the respondents also reside there, those provisions were reasonably necessary to provide meaningful protection and to end the family disruption.

Finally, the appellant maintains that the Family Court’s comments and rulings during the hearing demonstrated its partiality in favor of the respondents and bias against her, as well an adversarial attitude. However, there is no evidence that the Family Court was biased against the appellant and thereby deprived her of a fair hearing. Furthermore, the record does not support the appellant’s contention that the Family Court displayed an adversarial attitude toward her.
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On 7 July 2010, when the petitioner’s father had his mother pinned against the kitchen wall, the petitioner was allegedly assaulted by his father after he attempted to separate his father from his mother. According to the petitioner, he was stabbed with a knife by his father and was hospitalized thereafter. At approximately 3:00 a.m. on that day, while the petitioner was in the hospital for the stab wound to his chest, he was arrested by law enforcement from the County of Nassau (herein “County”) and the Village of Malverine (herein “the Village”) on charges of Second Degree Assault. At the Hospital, the petitioner provided statements to law enforcement regarding the incident that occurred earlier that night. Later the same day, the petitioner was arraigned on the Second Degree Assault charge and released on his own recognizance. On 6 December 2010, after appearing at four criminal court appearances, the criminal action was terminated in favor of the petitioner.

On 22 February 2011, the petitioner timely served a Notice of Claim for malicious prosecution upon the respondents, the County and the Village. Pursuant to the rules, the ninety day time period in which to file a Notice of Claim for malicious prosecution began to run on the date the criminal charges were dismissed in the petitioner’s favor. However, the petitioner’s time to file a Notice of Claim for false arrest and false imprisonment expired on 5 October 2010, as the applicable time period for said claims began to run on the date the petitioner was released from custody. Thereafter, the petitioner made an application to file a late Notice of Claim on 24 February 2011, approximately four months after the ninety day time period expired for false arrest and false imprisonment. The petitioner, in an Order to Show Cause, sought for an order pursuant to General Municipal Law granting him leave to serve a late Notice of Claim, nunc pro tunc, against the respondents, the County and the Village.

Under the General Municipal Law, in order to commence a tort action against a municipality, it is required that a claimant serve a notice of claim within ninety (90) days of the alleged injury. The time to serve a notice of claim may, in its discretion, be extended by the court. The key factors in determining whether to allow service of a late notice of claim are whether: the movant demonstrated a reasonable excuse for the failure to serve a timely notice of claim; the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter; and the delay would substantially prejudice the municipality in its defense. The presence or absence of any one of the factors is not necessarily determinative, and the absence of a reasonable excuse is not necessarily fatal.

Whether a public corporation acquired timely actual knowledge of the essential facts constituting the claim is seen as a factor which should be accorded great weight.
According to the petitioner, his application to file a late Notice of Claim is timely as it is being made within one year and ninety days of its accrual; the respondents received actual notice of the essential facts that constitute the claims of false arrest and false imprisonment as law enforcement from the County and the Village conducted an investigation and effectuated the petitioner’s arrest; the respondent County, obtained and prepared a Statement of Admission and Supporting Deposition; and, due to the respondents direct involvement in the investigation and subsequent arrest, actual knowledge is imputed to the municipalities. With respect to the reasonable excuse factor, the petitioner submitted an Affidavit wherein he stated that he was misinformed by his criminal attorney regarding the time in which to file a Notice of Claim for false arrest and false imprisonment. Specifically, as adduced from the petitioner’s Affidavit of Merit, his criminal attorney advised him that the ninety day time period in which to file a Notice of Claim for malicious prosecution, false arrest and false imprisonment runs from the date the criminal charges were dismissed in his favor; that only after his retention of a civil attorney was he made aware that the time period in which to file a Notice of Claim against a municipality for false arrest and false imprisonment runs from the date of his release from custody, and, therefore, the time period expired on 5 October 2010; that even if the Court were to find the petitioner’s excuse unreasonable, the absence of an acceptable excuse is not necessarily fatal to the application; and that the respondents will not be substantially prejudiced given the respondents actual knowledge of the circumstances giving rise to the claim and the brief four month delay. Domestic Violence was not apparent.

According to the respondent Village, in opposition to the petitioner’s application, the Malverne Police Department did not in any way participate in the investigation prior to the arrest of the petitioner; based upon its limited involvement in the incident, actual knowledge cannot be imputed to the municipality. In support of its position, the Village submitted the Affidavit of the Chief of the Malverne Police Department; and it would be substantially prejudiced if the Court were to permit the claim as none of the relevant materials exist within the Village’s control and witnesses’ memories of the events may have faded.

According to the Chief of the Malverne Police Department, in his Affidavit, on the date of the incident, a Malverne police officer was dispatched to the hospital where the petitioner was treated for his stab wound, and at the same time, a desk officer contacted the 5th Squad Detectives at the Nassau County Police Department because the 5th Squad investigates most of the felonies that occur in Malverne; the criminal charge for which the petitioner was initially a suspect and subsequently arrested on was Second Degree Assault, a felony; an officer from the Malverne Police Department merely stood guard in front of the petitioner’s hospital room until the petitioner was arrested by the 5th Squad Detectives; and the Malverne Police Department did not interrogate the petitioner, take any statements from him, investigate the facts, or subsequently arrest him.

According to the respondent County, in opposition to the petitioner’s application, ignorance of the law and law office failure are not reasonable excuses; the mere involvement of the Nassau County Police Department in the investigation and subsequent arrest of the petitioner is insufficient to impute actual knowledge upon the County; and it will be substantially prejudiced if the petitioner’s application is granted. The crux of the County’s opposition is that the method by which the petitioner seeks to impute actual knowledge upon the County is similar to the line of cases that address issues of actual knowledge arising from the completion of accident reports.

The petitioner, in reply to the respondents’ opposition, relied primarily on the case of Ragland v. New York City Housing Authority, decided by the Second Department in 1994, which stands for the proposition that where members of the municipality’s police department participate in the acts giving rise to the claim, and reports and complaints have been filed by the police, the municipality will be held to have actual notice of the essential facts of the claim; and that several of the cases relied upon by the County involve circumstances where actual knowledge was not imputed to the municipality based merely upon a police officer’s completion of an accident report.

Here, it is evident that the respondent County did acquire actual knowledge of the facts underlying the petitioner’s claims for false arrest and false imprisonment within ninety days of the incident. A member of the Nassau County Police Department, an employee of an agency of the municipality, was directly involved in the facts giving rise to the petitioner’s claims. To that end, it was alleged in the petitioner’s Affidavit of Merit, and supported by the Chief of the Malverne Police Department, that an officer and/or detective of the Nassau County Police Department questioned the petitioner and obtained a Supporting Deposition and a Statement of Admission from him. Moreover, the Nassau County Police Department subsequently arrested the petitioner, charged him with Second Degree Assault based on those documents, and prosecuted the case against him until the charges were ultimately dismissed. While counsel for the County was correct in the assertion that completion of a police aided accident report, in and of itself, is insufficient to impute actual knowledge to the municipality, actual knowledge has been found to exist when there are other factors present under the circumstances.

In the case of Ragland, a case most analogous to the matter sub judice, the petitioner filed an application to serve a late Notice of Claim for the claims of false arrest, false imprisonment and malicious prosecution. In that case, the police officer that effectuated the petitioner’s arrest prepared and filed reports concerning all of the events involved in the arrest and prosecution of the petitioner. The Court found that it is a factor of considerable significance when it is the acts of the police which give rise to the very claim set forth in the proposed notice. Similarly, in the case of Erichson v. City of Poughkeepsie Police Department, decided by the Second Department in 2009, the Court determined that the municipality had actual knowledge of the facts underlying the plaintiff’s claim, as its own employees engaged in the conduct which gave rise to the claim.

Notably, the purpose of the statutory Notice of Claim requirement is to afford the public corporation an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is still readily available. In view of this standard, the respondent County, had the opportunity to investigate, and did in fact investigate, the circumstances underlying the petitioner’s claims within the statutory time period. Since the County acquired actual knowledge of the essential facts of the petitioner’s claims, the petitioner has obviously met his initial burden of showing a lack of substantial prejudice to the municipality’s ability to maintain a defense on the claims. In this matter, however, the records from the underlying criminal matter were sealed pursuant to Criminal Procedure Law. Surprisingly, the respondent County did not raise the argument that it will be substantially prejudiced due to its inability to access those records. Thus, the Court conditioned the granting of the petitioner’s motion to file a late Notice of Claim on the respondent County, nunc pro tunc, on the petitioner providing the County with the appropriate releases to enable it to unseal and obtain the records from the criminal file.

With regard to the reasonable excuse factor, the petitioner’s excuse that he was ill advised by his criminal attorney regarding the accrual of the claims is not reasonable. Courts have consistently held that not even ignorance of the law or imprisonment, in limited circumstances, can excuse the delay. However, where there is actual notice and an absence of substantial prejudice, the lack of a reasonable excuse will not bar the granting of leave to serve a late Notice of Claim.

In view of the above, the petitioner’s Order to Show Cause to file a late Notice of Claim, nunc pro tunc, against the respondent County was granted. However, contrary to the County, the respondent Village did not acquire actual knowledge of the essential facts giving rise to the petitioner’s claims for false arrest and false imprisonment. The Village was not directly involved in the investigation preceding or subsequent to the arrest and prosecution of the petitioner. The Supporting Deposition and Statement of Admission submitted in support of the Order to Show Cause were documents created by the County of Nassau. Actual knowledge cannot be imputed to a municipality where the only involvement of a law enforcement official was to stand guard in front of the hospital room where the petitioner was being treated. The conduct of the Malverne Police Department cannot be found to give rise to the petitioner’s claims. Thus, since the respondent Village did not obtain actual knowledge of the essential facts giving rise to the petitioner’s claims, the petitioner’s application to file a late Notice of Claim upon the Village, nunc pro tunc, was denied.

In sum, that branch of the petitioner’s Order to Show Cause seeking to file a late Notice of Claim, nunc pro tunc, upon the respondent County was granted, conditioned upon the petitioner providing the respondent county with the appropriate releases to enable the County to unseal and obtain the records from the criminal file; and that branch of the petitioner’s Order to Show Cause seeking to file a late Notice of Claim, nunc pro tunc, upon the respondent Village was denied.
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This proceeding under Article 78 of the Civil Practice Act presents a problem of statutory construction. The statute to be construed is the Family Court Act (Laws 1962, Chapter 686).A Nassau Assault Lawyer said that, petitioner was, on December 11, 1962, indicted by the Grand Jury for the crime of assault in the first degree in that defendant with intent to kill, assaulted his wife, by stabbing her with a knife, the same being a deadly weapon.’ The indictment was handed up to the Nassau County Supreme Court, which, upon motion of the District Attorney, transferred the case to the County Court of Nassau County for trial. The defendant was arraigned on December 13, 1962, pleaded not guilty and was remanded pending trial.

A Nassau Criminal Lawyer said that, the relief now sought is in the nature of both mandamus and prohibition. Petitioner seeks to compel the County Court to transfer the proceeding to the Family Court, and seeks to prohibit the People of the State of New York, the District Attorney of Nassau County and the County Court from prosecuting him in the County Court.

The issue in this case is whether the new Family Court has exclusive jurisdiction over a first-degree criminal assault case merely because the assault was allegedly committed by one spouse upon the other.

Reliance is placed upon the wording of sections 812 and 813 of the Family Court Act, which, in pertinent part, read as follows: ‘ § 812. Jurisdiction. The family court has exclusive jurisdiction over any proceeding concerning acts which would constitute an assault between spouses. § 813. Transfer to family court. Any criminal complaint charging an assault or domestic violence between spouses shall be transferred by the criminal court in which complaint was made to the family court.’ At first glance this language would appear to be plain and unambiguous, but, when read in connection with other sections of the Act itself, with other statutes, and with constitutional concepts of criminal law, it becomes clouded, and presents a proper instance for inquiry into legislative intent.

The statutory pattern or legislative scheme is set forth in § 811 of the Act, ‘Finding and purpose’: ‘In the past, wives and other members of the family who suffered from disorderly conduct or assaults by other members of the family or household were compelled to bring a ‘criminal charge’ to invoke the jurisdiction of a court. Their purpose, with few exceptions, was not to secure a criminal conviction and punishment, but practical help.

‘The family child court is better equipped to render such help, and the purpose of this article is to create a civil proceeding for dealing with such instances of disorderly conduct and assaults. It authorizes the family court to enter orders of protection and support and contemplates conciliation procedures. If the family court concludes that these processes are inappropriate in a particular case, it is authorized to transfer the proceeding to an appropriate criminal court.’
The stated intention of the Legislature was thus to substitute a ‘civil proceeding,’ remedial and conciliatory in nature, for such cases which theretofore had found their way into criminal court, not because the people of the State had been affronted, but because the complainant needed help. This objective would hardly be consistent with the substitution of a ‘civil proceeding’ for a criminal trial in cases where the crime was infamous, and would have found its way into the criminal court because of the very nature of the offense. It is argued with some force, however, that the Legislature, aware of this distinction, and in no way intending to limit criminal prosecutions, nevertheless empowered the Family Court in the first instance, and exclusive of any other court, to make the determination as to which of the assaults would be heard in its own ‘civil proceeding,’ and which would be transferred to the appropriate criminal court.

This argument, however, cannot withstand analysis. Section 6 of Article 1 of the New York State Constitution provides that: ‘The power of grand juries to find indictments shall never be suspended or impaired by law.’ If the Family Court under the Act had unfettered discretion, exclusive of any other court or agency, to make its own determination of which assaults it would retain, and which it would transfer for criminal prosecution, it would then have the power to checkmate criminal law enforcement. This becomes apparent when reference is had to § 845 of the Act, which would apply to all assault cases which the court would retain and in which it would have conducted a dispositional hearing, which section reads as follows:’ § 845. Effect of order of disposition. ‘When the terms of an order of disposition made under this article are satisfied, no criminal proceeding may be commenced with respect to the acts which would constitute disorderly conduct or assault on which the adjudication giving rise to the order of disposition was based.’

Any interpretation of the Family Court Act which would thus empower a Family Court judge to conduct a civil proceeding which would bar a criminal proceeding for the same acts would both suspend and impair the constitutional power of the grand jury, and thus run afoul of the constitutional mandate. The power of the grand jury is such that it may indict even though a magistrate has held a hearing and discharged the accused.. A fortiori, the grand jury may indict whether the accused is before the Family Court for hearing, where he has been tried before the Family Court (for, since the proceeding there is designated as ‘civil’, the accused could not claim the benefit of the double jeopardy clause), or whether he is seeking to be transferred to the Family Court. The statute simply cannot divest the grand jury of its power.
This Family Court Act can and should be interpreted in harmony with this familiar canon of construction. The term ‘exclusive jurisdiction’ as applied to inferior courts has been held not to limit the jurisdiction of courts of general jurisdiction; and the identical term as used in the Family Court Act should, in accord with the rule in those cases, be considered merely as defining jurisdiction between that court and other inferior courts when those courts sit as courts of special sessions and not when the judges of those other inferior courts sit as committing magistrates.

Moreover, under § 22 of the Code of Criminal Procedure, the Supreme Court has jurisdiction ‘1. To inquire, by the intervention of a grand jury, of all crimes committed or triable in the county’ and the County Court, under the Code of Criminal Procedure, § 39 has jurisdiction to try and determine such crimes. The only limitation on this jurisdiction is that specifically set forth in the statutes and no limitation was included for the matters over which the Family Court has jurisdiction as it was for matters over which the Courts of Special Sessions and the Youth Court have jurisdiction. This court cannot read such a limitation into the statutes where the Legislature did not include it. Sections 22 and 39 of the Code of Criminal Procedure were amended in 1962 at the same Legislative session in which the Family Court bill was enacted. If the Legislature had intended to limit the jurisdiction of the County and Supreme Court as it did for crimes covered by Code of Criminal Procedure, Section 56, ff., it would have done so.
Assault with a knife with intent to kill cannot be regarded as a matter which would lend itself to Family Court treatment rather than criminal prosecution and could not have been intended by the Legislature to be referred to the Family Court. As stated by the Committee Report ‘the aim is not punishment, but practical help.’ When it is remembered that first degree assault with a dangerous weapon is a crime of such magnitude as to render a judge important to suspend sentence after conviction, and that punishment by imprisonment is mandatory, it can hardly be presumed that the Legislature intended to substitute ‘practical help’ for mandatory imprisonment merely because the crime was committed by one spouse upon another.
The grand jury retains its power to indict. The Supreme Court retains its power to receive the indictment. The County Court retains its power to try the accused. The petition is dismissed. Short form order signed.
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The defendant has been charged with assault in the third degree, harassment in the second degree, criminal possession of a weapon in the fourth degree, and unlawful possession of an air pistol.

The defendant has moved to dismiss the weapons charge and the administrative code charge as facially unconstitutional and unconstitutional as applied. He is also moving to suppress and preclude evidence.

Case Background
The charges against the defendant stem from an incident that allegedly occurred on the 26th of June inside an apartment located on Walton Avenue in the Bronx. The People allege that the defendant grabbed a woman by her arm, pushed her against a wall and choked her after stalking her.. This action caused the victim a substantial amount of pain to her arm and to her neck. There was a large bruise on her arm as a result.

Three days later, an officer allegedly observed that the defendant owned a black gun and an air pistol that were found inside the bedroom closet.

The defendant allegedly stated that the cops found the gun in the closet and that he had it for protection and that he had never shot it. He said he bought it from an old high school friend back in January. He states that he paid around $800 for the gun and there are maybe three or four bullets with it in the closet. The bullets were never loaded and I never fired it either.

Defendant’s Contentions
The defendant argues that the weapons charge is an unconstitutional prohibition of his right to possess a firearm in his home for the purpose of self-defense. While the defendant concedes that the Supreme Court has left open the right of states to regulate the sale, possession, and use of firearms, he states that the statute is overbroad and prevents indigent citizens from legally possessing firearms.

The defendant further argues that the ban on the possession of air pistols by the city is unconstitutional because an air pistol is a firearm that can be effective for self-defense in the home and that air pistols can be characterized as arms as the term is defined by the second amendment.

The defendant claims that these statutes are unconstitutional as they have been applied to him.

Court Discussion and Decision
The court has reviewed the arguments made by the defendant and has determined that they are without merit. His constitutional rights have not been violated and the statutes as applied are not unconstitutional.

The defendant has also made a motion in regard to a Huntley/Mapp/Dunaway/Payton hearing. He is requesting this type of hearing be held in regard to certain evidence in the case. The court will grant the hearing. A bill of particulars will be provided to the defendant and the hearing will be scheduled.
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Two cases were brought before the court for resolution.

On the first case:

On 15 May 2008, an amended criminal judgment was rendered by the Supreme Court of Queens County revoking the sentence of probation previously imposed by the same court on defendant upon a finding that he had violated a condition thereof, and, after a hearing, a sentence of imprisonment was imposed upon defendant’s previous conviction of assault in the second degree. And, on 24 September 2008, a judgment of the same court was rendered convicting defendant of rape in the second degree upon his plea of guilty, and sentence was also imposed thereafter.

The defendant appealed from the said judgments. After due consideration, the court ordered that the amended judgment and the judgment be affirmed.

According to the appellate court, the defendant’s waivers of his right to appeal were: knowing, voluntary, and intelligent. This is in accordance with the court’s rulings in the cases of People v. Ramos; People v. Lopez; and People v. Seaberg. This precludes the review of defendant’s claim that the sentence imposed upon his violation of probation was excessive, as held in the landmark cases of People v. Burton and People v. Kimbrough. Furthermore, since the defendant was informed that a maximum sentence could be imposed if he failed to complete the sexual offender’s counseling program, an appellate review of his contention that the enhanced sentence imposed upon his conviction of rape in the second degree was excessive is also precluded by that waiver; as held in the cases of People v. Bullock; People v. Ruiz; and People v. Greene.

On the second case:

On 28 May 1981, the complainant, a physician’s assistant, was accosted in the office of a Queens medical center by an assailant who dragged her from the medical center office across the street to a nearby automobile repair garage, and there sexually assaulted her. The incident took place over a period of approximately 15 minutes during which the complainant was face to face with her assailant under the bright fluorescent lights of the medical center. According to the complainant, she was able to observe the assailant’s face at the time the rape actually occurred. Shortly after the commission of the crime, the police arrived and transported the complainant to a certain General Hospital for treatment. On the way, however, a man from a nearby used car lot flagged down the police car in which the complainant was seated, advising that someone was breaking into a van. The officers pulled over, leaving the complainant in the vehicle, and proceeded to investigate. As the complainant watched from a distance of about 25 feet, the police removed from the van an individual whom the complainant immediately recognized as her assailant. The complainant subsequently identified the defendant in court as the man who had raped and assaulted her. Cocaine was not found.

On 25 May 1982, the Supreme Court of Queens County rendered judgment convicting defendant of rape in the first degree, and two counts of assault in the second degree, upon a jury verdict, and a sentence was imposed thereafter. The defendant appealed. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress the identification testimony.

According to the defendant, on appeal, the complainant’s out-of-court identification should have been suppressed since it was unduly suggestive. The court disagrees.

Here, it is questionable whether the defendant was indeed entitled to a Wade hearing in connection with the identification, since the defendant concedes that the encounter was not police arranged, as held in the cases of People v. Belushi; People v. Medina; People v. Gissendanner; People v. Moore; and Green v. Loggins of the Ninth Circuit. At any rate, there was nothing in the Wade hearing record which would indicate that the encounter between the complainant and the defendant was suggestive. Furthermore, even assuming, arguendo that the identification was suggestive, the record clearly supported the hearing court’s determination that there existed an independent basis supporting the complainant’s in-court identification of the defendant as the assailant, as held in the cases of People v. Smalls and People v. Burton. Lastly, the defendant’s remaining contentions were without merit.
Accordingly, the appellate court ordered that the judgment be affirmed.
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The defendant was indicted on two counts of criminal coercion in the first degree and two counts of unlawful imprisonment in the first degree.

Case Background
The charges in the case stem from an incident that occurred in July at a bar located in Rensselaerville located in Albany County. The record shows that the defendant and another male were in the bar in the afternoon, but the defendant left claiming that he was tired and that he was going home.

The other gentleman stayed at the bar and drank steadily all afternoon. At around eight in the evening he approached a woman at the bar and became abusive towards her. Two other gentlemen came to her rescue and the gentleman eventually left the bar.

Not long after, the man returned to the bar along with the defendant. According to several witnesses, the gentleman had a gun and ordered the two men that had helped the woman to place their hands on the bar. The two gentlemen did this and the man told the defendant to frisk them.

The State Police were called, but before they got there the defendant and the other man were persuaded to leave. The defendant and the other gentleman went to the parking lot and that is where they were when the police arrived and arrested them.

The police officers did not find a handgun after searching the home and car of the gentleman. However, the police found a holster and some ammunition at the house and the cylinder of a handgun and ammunition were found in the trunk of his car.

The gentleman was indicted on the same counts as the defendant, but the case against him was dismissed when he was killed. The defendant was convicted of coercion in the first degree against one of the men at the bar, but was acquitted on the coercion charges against the other man. The defendant was sentenced to an indeterminate sentence of two and a third years to seven years. The defendant is now appealing the judgment and sentence.

Case Discussion and Decision
The defendant claims that the county court made an error when they failed to charge coercion in the second degree as a lesser included offense of coercion in the first degree. The court rejects this claim.

The defendant also claims that the verdict was inconsistent as he was acquitted of coercion in the first degree against one of the men at the bar, but convicted on the charge against the other individual.

The court finds that the verdict was not inconsistent and this claim is denied.

All other claims made by the defendant are found to be without merit and the appeal is denied. The judgment and sentence made by the previous court are affirmed.
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The defendant was arrested and subsequently arraigned on a charge of assault in the third degree in violation of Penal Law § 120.00 (1). The People moved in line for a ruling allowing them to call an expert witness on domestic violence to testify on their direct case regarding the “battered woman syndrome” (hereinafter referred to as BWS). The complainant and the defendant dated periodically for a period of time encompassing the past 13 years. The instant charge stems from August 25, 2003, when the defendant is alleged to have picked up the complainant, thrown her over a couch, pushed her to the ground, and stomped on her groin, thereby causing her to allegedly suffer bruised ribs and a fractured coccyx. In support of their application, a Lawyer said that, the People detail the complainant’s allegations of physical and psychological abuse by the defendant over a prolonged period of time. Included are a litany of alleged violent acts directed at her by the defendant, from 1991 to 2003. The alleged violence included threatening to kill the complainant on numerous occasions, repeatedly beating her, urinating on her, various acts of forcible sex abuse, and constant berating of her. Although these acts occurred over a period of 13 years, except for brief sporadic periods of separateness, the complainant did not leave the defendant nor immediately seek protection from the police. All of the prior alleged violent acts were also the subject of the People’s Molineux application, which was separately decided.
A Nassau Sex Crime Lawyer said that, the charges contained in the criminal complaint before this court allegedly occurred on August 25, 2003. The complainant did not report the alleged crime to the police on August 25, 2003. On October 19, 2003, after other alleged incidents, the complainant reported this charge to the police along with four additional charges. Thereafter, the defendant was arrested for the above-listed crimes.

A cop said that, the People are prepared to proceed to trial, and in so doing, argue that expert testimony would aid the jury in the understanding of the complainant’s delay in reporting the incident. Further, the People specifically emphasized that their expert would be called to give an opinion in support of their contention that the complainant suffers from battered woman syndrome. The People claim that the expert’s testimony will “explain why the defendant abused the complainant in front of another prior victim of his abuse,” and that the expert’s testimony is “necessary to explain why the complainant waited nearly three months to report this incident.” The People contend that the expert testimony is relevant to explain the psychological effects of the defendant’s sex abuse toward the complainant and her “perplexing behavior patterns,” in essence, her continuous contact with the defendant.

A Lawyer said that, the defendant opposes the calling of the expert, arguing, in essence, that the expert’s testimony is not appropriate since the complainant was not a battered woman, but, instead, a scorned woman, who had engaged in false accusations because of her baseless belief of the defendant’s infidelity and/or unexplained whereabouts. In addition, defendant seeks to preclude the BWS expert as inapplicable since the parties were neither married nor living together and defendant claims that the complainant was the aggressor.

The issue in this domestic violence case is whether the court should permit the People to introduce expert testimony on their direct case on the subject of the battered woman syndrome in order to explain the conduct of the complainant in response to the alleged assault, specifically her delay in reporting the alleged incident for approximately nine weeks.
The Court has long held that the “admissibility and bounds of expert testimony are addressed primarily to the sound discretion of the trial court.” The “battered woman syndrome” has been described as “a series of common characteristics found in women who are abused both physically and emotionally by the dominant male figures in their lives over a prolonged period of time.” A thorough review of New York case law regarding BWS found that there have been only few written decisions where a court has ruled on whether expert testimony regarding BWS is admissible. Typically, BWS is advanced by defendants to assist the jury in evaluating the reasonableness of force used in self-defense wherein the proponent of the testimony, the defendant, is charged with a crime. Only a few New York courts have discussed the use by the prosecution on their direct case of an expert regarding BWS. This court finds that the use by the People of a BWS expert to explain a complainant’s complete recantation of the charges is dramatically different than the use to explain a delay in reporting the alleged crime.
New York courts have generally adopted the following tests for admissibility of BWS expert testimony at trial: (1) whether the evidence presented by the expert witness has the required scientific basis for admission, (2) whether the jurors are not able to evaluate and draw conclusions from the evidence based on their day-to-day experiences, their common observation and their knowledge, and would benefit from the specialized knowledge of an expert witness, and (3) whether the probative worth of the expert’s testimony outweighs the possibility of undue prejudice to the defendant or interferes with the jury’s province to determine credibility. In permitting the expert testimony on BWS, courts limit the testimony and prohibit the People from allowing the expert to opine that the complainant is a battered woman because of the profound danger that the jury will infer from the BWS testimony that the defendant committed the crime charged or that the jury will unduly use BWS testimony to improperly bolster the complainant’s credibility. Various other courts have allowed the People to introduce expert testimony about BWS to explain a recantation, a prior inconsistent statement, or unusual behavior.

The People herein seek to introduce expert testimony on BWS on their direct case for the following stated reasons: to explain the delay in reporting the assault, repeated reconciliations with the defendant after the beatings, and why she believed the defendant’s threats to kill her if she reported this incident. As this court in its Molineux ruling has denied the introduction of the various alleged uncharged crimes in the instant prosecution, the only surviving inquiry relates to the delay in the complainant’s reporting.

Although, the admission of expert testimony regarding battered woman syndrome, rape trauma syndrome, and learned helplessness syndrome has been held to be proper ” ‘to explain behavior on the part of the complainant that might seem unusual to a lay jury unfamiliar with the patterns of response exhibited’ by a person who has been physically and sexually abused over a period of time”, this court finds none of the facts apparent in this particular case outside of a jury’s common sense and logic, and therefore, sees no reason for permitting the People to present testimony on BWS on their direct case. This court finds a marked difference between the facts of this case versus the use of this type of expert testimony in rape cases and in cases where it is used to explain a child’s delay in reporting sexual abuse to rebut an inference that the victim was not abused. In the former, the testimony of an expert regarding rape trauma syndrome is inherently different from the assault case presented here. Expert testimony regarding rape trauma syndrome directly relates to the charge before the jury and does not infer past uncharged crimes. In the latter, the danger that a jury may misconstrue the actions and behavior of a child are far greater than the dangers presented when an adult testifies.

The People contend that permitting them to introduce expert testimony on BWS in their case-in-chief would be helpful to the jury’s understanding of the victim’s perceptions and behavior. The People fail to evaluate the prejudicial impact of the testimony on the defendant. This court holds that expert testimony on battered woman syndrome is inadmissible as a matter of law where it is used as an affirmative weapon against a defendant. Furthermore, the conflict with the admission of this testimony is that it violates the protections provided to the defendant and contradicts this court’s Molineux ruling. In particular, the facts of this case focus on allegations of assault which were not reported immediately by the complainant. A jury is well within their bounds and exercise of common sense to evaluate the complainant’s testimony regarding the facts and circumstances surrounding the alleged incident as well as her minimal delay in reporting.

Although this court acknowledges that there does exist varying misconceptions regarding battering relationships, this court does not believe any such potential lack of understanding in this particular case is sufficient grounds for admitting expert testimony which otherwise has only limited probative value but substantial prejudicial impact on the defendant. Simply put, if a BWS expert is permitted to give testimony in this particular case and begins by detailing the symptoms experienced by a “battered woman” or person, this leads to the inference that (1) the complainant is a battered woman, and (2) the defendant committed prior acts of violence against the complainant. This, in essence, gives rise to the jury determining that the defendant has a propensity to commit domestic violence against this complainant. Finally, the complainant’s state of mind is not at issue here, nor is proof that the defendant is a batterer or that the defendant and the complainant were involved in a battering relationship. Expert testimony regarding the symptoms of a battered person leads to the unavoidable conclusion that the complainant suffers from BWS, which presupposes and speculates on the existence of a batterer. Since there is no evidence that any other person other than the defendant was involved in a relationship with the complainant during the relevant time period, such testimony amounts to an opinion that the defendant was and is in fact a batterer.

After reviewing both the People’s memorandum of law and the defendant’s memorandum in opposition, and considering counsel’s arguments on both sides of the issue, this court will not permit the People’s proposed expert to testify on their direct case regarding battered woman syndrome. In sum, expert testimony on battered woman syndrome should be admissible only to address an issue that is inherently confusing to the jury and when there is no other evidence to address it. This court finds that the admission of any such testimony is not necessary to aid the trier of fact in this case in assessing the circumstances surrounding the relatively minimal delay in the complainant’s reporting of the instant alleged offense, and finds the probative value outweighed by the prejudicial impact. As such, the Court held that the People are precluded from introducing such evidence on their direct case.
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The Kings County Court on July 22, 1958, was called upon to evaluate two separate cases that involved requests for specific information from protected patient records in a hospital. The court was asked to determine if the cases warranted the release of the medical records, or if the cases were not eligible to request the records because the records were protected by the doctor/patient privilege. In order to determine the necessity for the release of these documents, the court had to look at the specifics involved in each case.

The first case involved a man who had brutally beaten another man in a fight. The fight occurred in Kings County and left the injured man in a condition so serious that he had to be hospitalized. The hospitalization lasted for several weeks. During this time, the man was exposed to a bacteria in the hospital that caused him to suffer from infection. The infection turned into sepsis. The man ultimately died from the sepsis from the bacteria that he was exposed to in the hospital. The man’s assailant was charged with manslaughter for causing the death of his victim. His defense team challenged the indictment based on the fact that the injuries that the man sustained were not the proximate cause of the man’s death. His death was caused by bacteria that he was exposed to while he was hospitalized. The defense contends that they should be allowed access to the victims personal medical records so that they can prove their case at trial.

The second case involved a woman who was charged with poisoning her husband. She contends that she did not poison her husband’s food. In order to prove her case, she requested that all of the medical records be provided to her and her defense team for review. Specifically, she wanted access to the post mortem examination that was conducted by the county Medical Examiner. She stated that she needed all of the reports that involved the chemical analysis of her husband’s organs. She also requested copies of the documents that were submitted and not submitted to the Grand Jury at the time of her indictment.

In both of these cases, the district attorney petitioned for orders of prohibition. His contention was that in the first case, the man would not have been in the hospital to be exposed to the bacteria if the defendant had not assaulted him. In the second case, he pointed out that the woman had access to all of the information that was provided to the Grand Jury which was all of the information that would be used in the trial. His contention being that the information that was in the Grand Jury testimony should be sufficient without violating the doctor/patient privilege.

The court was called upon to determine if use of these documents in court was a violation of the privilege provided to patients to speak openly with their doctors, or if the pursuit of justice was of more importance. The court was troubled by the connotations that the question presented. They first determined that where a person is dead, there is no longer a reason to uphold the privilege. That person can no longer be injured by any information that has been released. They also determined that when a case is presented to a court, the privilege is automatically waived by that victim in order to support a prosecution. In recent years, this rule has been revised so that the defense is privy to any and all documents that are in the possession of the prosecution. Only by having access to all of the information that the prosecution has access to, can a defendant properly prepare their defense in a court of law.
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