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BASED UPON THE RIGHT TO CONFRONT AND CROSS-EXAMINE THE WITNESSES AGAINST HIM, DEFENDANT SHOULD HAVE BEEN PRESENT AT THE IN CAMERA INTERVIEW OF THE STATUTORY-RAPE COMPLAINANT TO DETERMINE THE RELEVANCE OF HER PSYCHIATRIC HISTORY (A MATERIAL STAGE OF THIS PROCEEDING); DEFENDANT’S STATEMENT FOR WHICH NO 710.30 NOTICE WAS PROVIDED SHOULD NOT HAVE BEEN ADMITTED; THE MOLINEUX EVIDENCE OF INTENT, MOTIVE, OR LACK OF MISTAKE WAS NOT RELEVANT TO STATUTORY RAPE (SECOND DEPT).

The Second Department, reversing defendant’s conviction, determined: (1) based upon his right to confront and cross-examine the witnesses against him, the defendant should have been present during the judge’s in camera interview with the complainant in this statutory rape case to determine the relevance of her psychiatric history (a material stage of this proceeding); (2) the defendant’s statement for which no CPL 710.30 notice was provided should not have been admitted on that ground; and (3) that same statement should not have been admitted as “Molineux” evidence of intent, motive or lack of mistake because such evidence is not relevant to statutory rape:

The right of an accused to confront the witnesses against him or her through cross-examination is a fundamental right of constitutional dimension … . The right of cross-examination is an essential safeguard of fact-finding accuracy and “the principal means by which the believability of a witness and the truth of his testimony are tested” … .

Where a primary prosecution witness is shown to suffer from a psychiatric condition, the defense is entitled to show that the witness’s capacity to perceive and recall events was impaired by that condition … .

In this case, the defendant’s absence during the Supreme Court’s in camera interview with the complainant to determine if her psychiatric history was relevant had a substantial effect on his ability to defend the charges against him, and thus, the interview constituted a material stage of the trial for which the defendant should have been present … . Where, as here, the “defendant was absent during a material part of his trial, harmless error analysis is not appropriate,” and a new trial is required … . Moreover, while the scope of cross-examination generally rests within the trial court’s discretion … , here, the court improvidently exercised its discretion in striking the complainant’s testimony adduced during cross-examination with respect to her psychiatric history. People v King, 2021 NY Slip Op 01996, Second Dept 3-31-21

 

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FATHER’S PETITION FOR A MODIFICATION OF CUSTODY, REQUESTING AN AWARD OF SOLE CUSTODY, SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
RATHER THAN DISMISSING THE PETITION FOR FAILURE TO INCLUDE NECESSARY PARTIES, SUPREME COURT SHOULD HAVE DIRECTED THAT THE NECESSARY PARTIES BE SUMMONED; THE COURT’S POWER TO SUMMON NECESSARY PARTIES IS NOT AFFECTED BY THE RUNNING OF THE STATUTE OF LIMITATIONS; ONLY THE SUMMONED NECESSARY PARTIES THEMSELVES HAVE STANDING TO RAISE THE STATUTE OF LIMITATIONS DEFENSE (SECOND DEPT).
PLAINTIFFS FOUND OUT WELL INTO THE CONTRACT FOR GAS-MAIN WORK THAT THE REQUESTED INSURANCE COVERAGE HAD NOT BEEN PROVIDED; THE DECLARATORY JUDGMENT CAUSE OF ACTION WAS PROPERLY DISMISSED BECAUSE IT DEPENDED ON A CIRCUMSTANCE THAT MAY NOT OCCUR; THE NEGLIGENT PROCUREMENT CAUSE OF ACTION WAS PROPERLY DISMISSED FOR LACK OF DAMAGES; THE BREACH OF CONTRACT CAUSE OF ACTION WAS SUPPORTED BY NOMINAL DAMAGES; THE FRAUD AND NEGLIGENT MISREPRESENTATION CAUSES OF ACTION WERE SUPPORTED BY A SPECIAL RELATIONSHIP WITH THE INSURANCE BROKER AND DETRIMENTAL RELIANCE (SECOND DEPT).
DERIVATIVE NEGLECT FINDING STEMMING FROM A MOTION FOR SUMMARY JUDGMENT REVERSED; MOTHER HAD SUCCESSFULLY PARTICIPATED IN MENTAL HEALTH TREATMENT SINCE THE NEGLECT FINDINGS WITH RESPECT TO THE OLDER CHILDREN (SECOND DEPT).
THE OPTION TO RENEW THE LEASE WAS NOT ENFORCEABLE; IT WAS MERELY AN AGREEMENT TO AGREE (SECOND DEPT).
PLAINTIFF DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1304 AND 1306 IN THIS FORECLOSURE ACTION; PROOF REQUIREMENTS EXPLAINED IN SOME DEPTH (SECOND DEPT).
PROTECTIVE ORDER PROHIBITING ANY NON-LAWYER FROM ATTENDING PLAINTIFF’S PHYSICAL EXAMINATION SHOULD NOT HAVE BEEN ISSUED.

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