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COUNTY COURT SHOULD HAVE HELD A HEARING ON DEFENDANT’S MOTION TO VACATE HIS CONVICTION ON INEFFECTIVE ASSISTANCE OF COUNSEL GROUNDS, DEFENDANT PRESENTED EVIDENCE AN ALIBI WITNESS WAS NOT INTERVIEWED; A WITNESS’S RECANTATION WAS PROPERLY FOUND UNBELIEVABLE (FOURTH DEPT).

The Fourth Department, reversing County Court, determined a hearing was required on defendant’s motion to vacate his conviction on ineffective assistance grounds. The motion alleged that defense counsel did not adequately investigate alibi witnesses. The Fourth Department also held that County Court properly found a witness’s recantation of trial testimony unbelievable:

In recognition of the fact that “[t]here is no form of proof so unreliable as recanting testimony” … , courts have set forth a list of factors to be considered where, as here, the newly discovered evidence is recantation evidence, i.e., “(1) the inherent believability of the substance of the recanting testimony; (2) the witness’s demeanor both at trial and at the evidentiary hearing; (3) the existence of evidence corroborating the trial testimony; (4) the reasons offered for both the trial testimony and the recantation; (5) the importance of facts established at trial as reaffirmed in the recantation; and (6) the relationship between the witness and defendant as related to a motive to lie” … .  Another relevant factor is “whether the recantation refutes the eyewitness testimony of another witness” … . …

… [D]defendant’s CPL 440.10 motion was supported by notarized but unsworn statements of two previously unknown individuals who claimed that they would have corroborated the trial testimony of defendant and his mother that defendant was at a party at his mother’s home for the entire evening of the shooting. One of those witnesses specifically stated that she was at all times willing to “make [a] statement” but was never contacted by defense counsel. Two additional witnesses stated that they observed defendant at that party some time after the shooting. While those witnesses do not provide a technical alibi for defendant because they did not discuss defendant’s location at the time of the shooting … , they tend to support the alibi evidence that defendant could not have been the shooter because he was at a party at his mother’s house for the entire evening … . People v Howard, 2019 NY Slip Op 06309, Fourth Dept 8-22-19

 

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PLAINTIFF DID NOT RAISE A QUESTION OF FACT WHETHER THE COUNTY WAS AFFIRMATIVELY NEGLIGENT IN THIS ICE AND SNOW SLIP AND FALL CASE; THEREFORE THE COUNTY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).
THE OBVIOUS BIAS OF THE JUDGE IN THIS TERMINATION OF PARENTAL RIGHTS PROCEEDING DEPRIVED MOTHER OF HER RIGHT TO DUE PROCESS OF LAW (FOURTH DEPT). ​
MOTHER SHOULD NOT HAVE BEEN DEEMED COLLATERALLY ESTOPPED FROM PRESENTING EVIDENCE OF HER MENTAL HEALTH IN THIS TERMINATION-OF-PARENTAL-RIGHTS ACTION; THE PRIOR MENTAL-HEALTH-BASED RULING WAS BASED ON THREE-TO-EIGHT-YEAR-OLD EVIDENCE (FOURTH DEPT).
DEFENSE COUNSEL WAS DEEMED INEFFECTIVE FOR FAILING TO OBJECT TO THE PROSECUTOR’S REPEATED PREJUDICIAL REMARKS MADE TO PROSPECTIVE JURORS (TO THE EFFECT “I CAN SLEEP AT NIGHT BECAUSE I AM NO LONGER A DEFENSE ATTORNEY”), AND FOR AGREEING TO THE JUDGE’S REQUEST TO HAVE THE TWO SIDES ALTERNATE GOING FIRST IN EXERCISING PEREMPTORY JUROR CHALLENGES (IN VIOLATION OF THE CRIMINAL PROCEDURE LAW) (FOURTH DEPT). ​
PLAINTIFF, WHO PURCHASED THE PROPERTY, SUED THE PRIOR OWNER IN NEGLIGENCE FOR DAMAGES STEMMING FROM PLAINTIFF’S EXPOSURE TO CHEMICAL CONTAMINATION ON THE PROPERTY; LIABILITY FOR A DANGEROUS CONDITION ON PROPERTY GENERALLY CEASES UPON TRANSFER OF THE PROPERTY; THE NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).
DEFENDANT SHOULD NOT HAVE BEEN REQUIRED TO PROCEED PRO SE ON THE PEOPLE’S MOTION TO COMPEL A BUCCAL SWAB FOR DNA TESTING (FOURTH DEPT).
A RULING ON A MOTION TO DISMISS DEALS ONLY WITH THE SUFFICIENCY OF THE PLEADINGS AND DOES NOT CONSTITUTE THE LAW OF THE CASE WITH RESPECT TO A SUBSEQUENT MOTION FOR SUMMARY JUDGMENT (FOURTH DEPT). ​

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