84 results for 'judge:"Powers"'.
J. Powers finds the trial court erred in denying defendant’s motion for acquittal on a burglary charge. “The state failed to adduce sufficient evidence to prove that he knew or believed that the person who invited him into the motel room lacked authority to do so.” Reversed.
Court: Oregon Court of Appeals, Judge: Powers, Filed On: February 22, 2024, Case #: A176643, Categories: Burglary, Evidence
J. Powers finds the trial court properly denied defendant eligibility for sentence reduction programs or early release. Since defendant did not object to the denial of eligibility in court, his argument is unpreserved for appeal. Affirmed.
Court: Oregon Court of Appeals, Judge: Powers, Filed On: February 22, 2024, Case #: A178368, Categories: Sentencing
J. Powers finds that a police officer was properly denied accidental disability retirement benefits by the state when she was injured while carrying a flagpole in a ceremonial detail. The incident did not constitute an accident since the officer recognized that she would have to maneuver the flagpole through doorways during the indoor ceremony, and thus striking a door as occurred was not unexpected. Affirmed.
Court: New York Appellate Divisions, Judge: Powers, Filed On: February 15, 2024, Case #: CV-23-0233, Categories: Employment, Social Security, Tort
J. Powers finds that a cashier for a financial services company was properly disqualified from receiving unemployment benefits for leaving her job without good cause since the cashier failed to meet the health department's mandate that public-facing workers receive the Covid-19 vaccination and failed to provide documentation indicating she had been medically excused from getting vaccinated. Affirmed.
Court: New York Appellate Divisions, Judge: Powers, Filed On: February 15, 2024, Case #: CV-23-0569, Categories: Employment, Covid-19
J. Powers finds that the workers' compensation board properly granted benefits after ruling that a plumber's collapse and death soon after arriving at a construction site had been job-related. Testimony from a medical provider who treated the decedent and talked to his widow and coworkers demonstrated the decedent was overweight and suffered high blood pressure and coronary, but on that fateful hot and humid day, he had to walk a distance over rough terrain to get to the jobsite, and suffered added stress from being named shop steward on a big project at LaGuardia Airport. Affirmed.
Court: New York Appellate Divisions, Judge: Powers, Filed On: February 8, 2024, Case #: 534946, Categories: Workers' Compensation
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J. Powers finds the trial court erred in ruling that he forcefully prevented officers from arresting his friend. “Although defendant temporarily created a barrier between the officers and [the friend], defendant’s actions did not rise to the level of ‘force.’” Reversed.
Court: Oregon Court of Appeals, Judge: Powers, Filed On: February 7, 2024, Case #: A176017, Categories: Resisting Arrest
J. Powers finds that the lower court improperly denied a hospital's request to dismiss attorney misconduct claims leveled by a practice terminated as exclusive provider of oncology services. Collateral estoppel barred relitigating the attorneys' purportedly false statements since such had been addressed in a previous action in which sanctions had been assessed against the hospital for failing to preserve certain documents. Reversed.
Court: New York Appellate Divisions, Judge: Powers, Filed On: February 1, 2024, Case #: CV-23-0893, Categories: Civil Procedure, Sanctions, Contract
J. Powers finds that the lower court properly dismissed conversion and replevin claims plaintiff brought against an ex-girlfriend concerning a mobile home sited on her land. The parties originally intended to rent the home, which was affixed to a concrete pad and connected to utilities, and thus plaintiff lacked an ownership interest. Affirmed.
Court: New York Appellate Divisions, Judge: Powers, Filed On: February 1, 2024, Case #: CV-23-0354, Categories: Property, Conversion
J. Powers finds the trial court erred by failing to suppress evidence of defendant’s refusals to perform field sobriety tests (FSTs). “Refusals to perform FSTs—like refusals to perform breath tests—may be admitted as evidence of guilt if the state proves that law enforcement’s requests to perform the tests could be understood only as a request to submit to the physical act, and not as a request that defendant provide constitutionally significant consent to the tests.” Reversed.
Court: Oregon Court of Appeals, Judge: Powers, Filed On: January 24, 2024, Case #: A172776, Categories: Evidence, Vehicle
J. Powers finds that the trial court erred in denying a canine semen storage company's motion for directed verdict because dog breeders did not present legally sufficient evidence for the jury to consider lost profits. “Plaintiffs’ evidence was ambiguous as to their expenses incurred during their [dog] breeding operation, leaving the jury to impermissibly speculate about the amount of net lost profits.” Reversed.
Court: Oregon Court of Appeals, Judge: Powers, Filed On: January 24, 2024, Case #: A174441, Categories: Evidence
J. Powers finds that the lower court properly dismissed a paternal grandmother's request for visitation because the grandmother and mother recently fell out over trauma the child suffered from being bitten by the grandmother's dog; instead, the court recommends gradual reintroduction during the father's parenting time or through therapeutic contact. Affirmed.
Court: New York Appellate Divisions, Judge: Powers, Filed On: January 11, 2024, Case #: 535048, Categories: Family Law
J. Powers finds that the lower court properly declined to bar an attorney from observing testing on his client to determine whether she suffered a traumatic brain injury in a car accident because evidence did not indicate the existence of an industry-wide consensus as to whether the presence of an unobtrusive third party tainted neuropsychological testing. Affirmed.
Court: New York Appellate Divisions, Judge: Powers, Filed On: January 4, 2024, Case #: CV-23-0003, Categories: Negligence, Experts
J. Powers finds that the lower court properly further restricted a father's supervised visits with his daughter by requiring that they occur in public because the child's best interests would be served by limiting contact until the father could demonstrate some stability in his mental health and alcohol use. Affirmed.
Court: New York Appellate Divisions, Judge: Powers, Filed On: December 28, 2023, Case #: 534499, Categories: Family Law
J. Powers finds the trial court erred in denying defendant’s motion to suppress evidence because the officer’s question expanded the scope of the traffic stop without an independent constitutional justification. “Officer’s inquiry violated the subject-matter limitation that Article I, section 9, imposes on investigatory stops given the circumstances in which it arose and that the state did not meet its burden to prove that the violation did not affect defendant’s subsequent consent to a patdown and search of his pockets.” Reversed.
Court: Oregon Court of Appeals, Judge: Powers, Filed On: December 28, 2023, Case #: A173064, Categories: Drug Offender, Evidence, Search
J. Powers finds the Land Use Board of Appeals properly concluded that Lincoln County’s order establishing geographic subareas for short-term rental (STR) licenses and establishing limits on the number of STR licenses in each subarea was not a land use decision for purposes of LUBA jurisdiction. “Petitioners’ arguments…do not provide any reason to disturb LUBA’s decision.” Affirmed.
Court: Oregon Court of Appeals, Judge: Powers, Filed On: December 28, 2023, Case #: A182468, Categories: Government, Property
J. Powers finds the trial court erred in failing to require joinder of necessary parties in a property dispute. “The court erred in proceeding on the declaratory judgment claim and granting declaratory relief in the absence of necessary parties.” Reversed.
Court: Oregon Court of Appeals, Judge: Powers, Filed On: December 28, 2023, Case #: A176637, Categories: Property
J. Powers finds the juvenile court erred in placing youth in a facility because its written findings were inadequate to support the judgment. Although “the juvenile court gave more explanation in its oral ruling, that reasoning is not part of the court’s written findings and therefore does not meet the statutory requirement for written findings.” Reversed.
Court: Oregon Court of Appeals, Judge: Powers, Filed On: December 28, 2023, Case #: 177760, Categories: Juvenile Law
J. Powers finds that the lower court improperly convicted defendant of criminally negligent homicide for striking a slowing car with his box truck and pushing it into the opposite travel lane to be hit by a pickup, resulting in a fatal skull fracture to the car's off-duty state trooper. Accident reconstruction experts agreed that the box-truck driver's inattentiveness caused the accident, but his failure to brake did not make him criminally liable. Reversed.
Court: New York Appellate Divisions, Judge: Powers, Filed On: December 21, 2023, Case #: 113121, Categories: Negligent Homicide, Experts
J. Powers finds that the lower court improperly found for a laborer struck by a car at a hotel construction site while an employee backed out of a parking spot at the request of a hotel valet. Questions of fact remain unresolved as to whether proper fencing had been placed around the area in which the laborer had been guiding equipment through the parking lot, or whether the hotel employee signaled his intentions to the equipment operator before moving his car. Reversed.
Court: New York Appellate Divisions, Judge: Powers, Filed On: December 21, 2023, Case #: CV-22-2241, Categories: Construction, Negligence, Premises Liability
J. Powers finds that the lower court properly terminated a father's parental rights for permanently neglecting his child. The father pleaded guilty to sexual abuse in criminal proceedings held after the child was removed from his care, and the father failed to take part in various sex offender, domestic violence, and substance abuse programs and services offered during incarceration. Affirmed.
Court: New York Appellate Divisions, Judge: Powers, Filed On: December 21, 2023, Case #: CV-22-2311, Categories: Family Law
J. Powers finds the trial court properly convicted defendant of 8 counts of first-degree murder after a retrial following several lengthy appellate processes. “The procedure followed here by the trial court for submitting enhancement facts to the jury during sentencing and the court’s imposition of an enhanced sentence based on those facts comport with both the statutes…and with the requirements of Apprendi and Blakely.” Affirmed.
Court: Oregon Court of Appeals, Judge: Powers, Filed On: December 20, 2023, Case #: A173046, Categories: Murder, Sentencing
J. Powers finds the juvenile court properly denied a father’s motion to dismiss dependency jurisdiction over his six-year-old child. The court found “that the conditions and circumstances relating to both sex abuse and substance abuse continued to pose a current threat of serious loss or injury to [the child] that is reasonably likely to be realized.” Affirmed.
Court: Oregon Court of Appeals, Judge: Powers, Filed On: December 20, 2023, Case #: A181150, Categories: Family Law
[Consolidated.] J. Powers finds that the workers' compensation board properly held that claimant failed to report she had fallen downstairs a year prior to bringing claims for injuries sustained as an aide at a men's shelter. Claimant contends she had not been trying to hide anything, but she had not disclosed the prior accident while undergoing an independent medical examinations as part of the benefits process. A mandatory penalty was appropriate, but the time frame covered by the penalty should be reduced. Affirmed in part.
Court: New York Appellate Divisions, Judge: Powers, Filed On: December 14, 2023, Case #: 536034, Categories: Workers' Compensation
[Consolidated.] J. Powers finds that the lower court properly declined to vacate the decision to sentence defendant as a second felony offender on separate convictions for robbery, conspiracy, resisting arrest, and possessing stolen property. Previously, defendant had been convicted in North Carolina of felony larceny, an equivalent felony under New York law. Affirmed.
Court: New York Appellate Divisions, Judge: Powers, Filed On: December 7, 2023, Case #: 113104, Categories: Robbery, Sentencing, Conspiracy
[Consolidated.] J. Powers finds that the lower court properly issued an order of protection against a husband for a physical altercation with his wife. He likewise accused the wife, but his account was not credible given her smaller stature, and the wife contends she acted in self-defense since her husband had previously injured her. Affirmed.
Court: New York Appellate Divisions, Judge: Powers, Filed On: November 22, 2023, Case #: 535650, Categories: Family Law, Restraining Order
J. Powers finds that a child was properly adjudicated neglected by her mother, who used drugs during pregnancy and failed to attend prenatal appointments. Evidence indicates the child was in imminent danger of physical, mental, or emotional damage, not only due to the child's low birth weight but because the mother insisted on living with the child's father, a registered sex offender who had been convicted of raping the mother when she was 14 years old. Affirmed.
Court: New York Appellate Divisions, Judge: Powers, Filed On: November 22, 2023, Case #: 534193, Categories: Family Law
J. Powers finds the trial court properly determined the record was sufficient to conclude appellant had a mental illness such that she was unable to provide for her basic needs. Evidence showed that “appellant, if released on the day of the hearing, would have been at a nonspeculative risk of serious physical harm in the near future.” Affirmed.
Court: Oregon Court of Appeals, Judge: Powers, Filed On: November 15, 2023, Case #: A177733, Categories: Evidence, Commitment