Page 1004 – New York Appellate Digest

/ Criminal Law, Evidence

ACQUISITION OF CELL PHONE LOCATION DATA, PLACING DEFENDANT NEAR THE MURDER SCENE, DID NOT REQUIRE A WARRANT SUPPORTED BY PROBABLE CAUSE (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice Whalen, determined the acquisition of data indicating the location of defendant’s cell phone close in time to the murder did not require a warrant supported by probable cause. The court also found that the reason for the prosecutor’s elimination of a juror, offered in response to defendant’s Batson challenge, was not pretextual. With respect to the cell phone location data, the court wrote:

… [W]e conclude that the acquisition of the cell site location information was not a search under the Fourth Amendment to the federal constitution because defendant’s use of the phone constituted a voluntary disclosure of his general location to his service provider, and a person does not have a reasonable expectation of privacy in information voluntarily disclosed to third parties … . In contending otherwise, defendant relies on United States v Jones (565 US 400 [2012]) — particularly Justice Sotomayor’s concurring opinion in that case (565 US at 413-418) — and Riley v California (___ US ___, 134 S Ct 2473 [2014]). In our view, that reliance is misplaced. Jones is distinguishable because it involved direct surveillance of the defendant by the police using a GPS device as opposed to information that the defendant had voluntarily disclosed to a third party … Notwithstanding Justice Sotomayor’s suggestion that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties” … , we remain bound by the third-party doctrine when interpreting the Fourth Amendment “[u]ntil a majority of justices on the [Supreme] Court instructs us otherwise” … . Riley, in turn, is distinguishable because it involved an inspection of the contents of the defendant’s phone, rather than mere location information … . People v Jiles, 2017 NY Slip Op 08944, Fourth Dept 12-22-17

CRIMINAL LAW (ACQUISITION OF CELL PHONE LOCATION DATA, PLACING DEFENDANT NEAR THE MURDER SCENE, DID NOT REQUIRE A WARRANT SUPPORTED BY PROBABLE CAUSE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, (ACQUISITION OF CELL PHONE LOCATION DATA, PLACING DEFENDANT NEAR THE MURDER SCENE, DID NOT REQUIRE A WARRANT SUPPORTED BY PROBABLE CAUSE (FOURTH DEPT))/CELL PHONE LOCATION DATA (CRIMINAL LAW, ACQUISITION OF CELL PHONE LOCATION DATA, PLACING DEFENDANT NEAR THE MURDER SCENE, DID NOT REQUIRE A WARRANT SUPPORTED BY PROBABLE CAUSE (FOURTH DEPT))/SEARCH AND SEIZURE (CELL PHONE LOCATION DATA, (ACQUISITION OF CELL PHONE LOCATION DATA, PLACING DEFENDANT NEAR THE MURDER SCENE, DID NOT REQUIRE A WARRANT SUPPORTED BY PROBABLE CAUSE (FOURTH DEPT))/SUPPRESSION (CELL PHONE LOCATION DATA, (ACQUISITION OF CELL PHONE LOCATION DATA, PLACING DEFENDANT NEAR THE MURDER SCENE, DID NOT REQUIRE A WARRANT SUPPORTED BY PROBABLE CAUSE (FOURTH DEPT))

December 22, 2017

/ Appeals, Criminal Law, Evidence

EVIDENCE DEFENDANT CONSTRUCTIVELY POSSESSED DRUGS THAT WERE LOCATED IN HIS SISTER’S (NOT HIS) RESIDENCE SUFFICIENT, SENTENCE REDUCED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department determined the evidence of constructive possession of drugs found in defendant’s sister’s (not defendant’s) residence was sufficient. Defendant’s sentence was deemed too harsh, even for a repeat offender, and was reduced in the interest of justice:

” Constructive possession can be established by evidence that the defendant had dominion and control over the [drugs and drug paraphernalia] or the area in which [they were] found’ . . . Exclusive access, however, is not required to sustain a finding of constructive possession’ ” … . Here, the drugs and drug paraphernalia were recovered from various locations inside a residence in which defendant’s sister, her boyfriend and her children resided. It is undisputed that defendant did not reside in that residence. Nevertheless, there was ample evidence that defendant constructively possessed the contraband. * * *

Unlike other constructive possession cases, where the testimony at trial is limited to physical evidence linking a defendant to a location and possession of the drugs must be inferred from the defendant’s ties to the residence … , here there was testimony that defendant on three occasions admitted that the drugs in the house belonged to him, and the sister’s boyfriend testified that the drugs in his residence belonged to defendant. Moreover, the evidence established that defendant had sold cocaine from that residence less than three weeks before the search warrant was executed. People v Tuff, 2017 NY Slip Op 08971, Fourth Dept 12-22-17

CRIMINAL LAW (EVIDENCE DEFENDANT CONSTRUCTIVELY POSSESSED DRUGS THAT WERE LOCATED IN HIS SISTER’S (NOT HIS) RESIDENCE SUFFICIENT, SENTENCE REDUCED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/EVIDENCE (CRIMINAL LAW, CONSTRUCTIVE POSSESSION, EVIDENCE DEFENDANT CONSTRUCTIVELY POSSESSED DRUGS THAT WERE LOCATED IN HIS SISTER’S (NOT HIS) RESIDENCE SUFFICIENT, SENTENCE REDUCED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/CONSTRUCTIVE POSSESSION (EVIDENCE DEFENDANT CONSTRUCTIVELY POSSESSED DRUGS THAT WERE LOCATED IN HIS SISTER’S (NOT HIS) RESIDENCE SUFFICIENT, SENTENCE REDUCED IN THE INTEREST OF JUSTICE (FOURTH DEPT))/APPEALS (INTEREST OF JUSTICE, SENTENCE REDUCED IN THE INTEREST OF JUSTICE (FOURTH DEPT))

December 22, 2017

/ Appeals, Criminal Law

PETITION FOR WRIT OF CORAM NOBIS GRANTED, APPEAL CONSIDERED DE NOVO, TRIAL COURT’S FAILURE TO PUT REASONS FOR RESTRAINING DEFENDANT ON THE RECORD REQUIRED REVERSAL AND A NEW TRIAL (FOURTH DEPT).

The Fourth Department granted the petition for a writ of coram nobis, considered the appeal (which had affirmed the conviction) de novo, and ordered a new trial in this attempted murder, assault case. The reversal was based upon the trial judge’s failure to put on the record the reasons for restraining the defendant in the presence of the jury (an issue not raised in the appeal). The court rejected the People’s argument that the applicable Court of Appeals ruling should not be applied retroactively:

… [W]e agree with defendant “that the court erred in failing to make any findings on the record establishing that defendant needed to wear a stun belt during the trial . . . Contrary to the People’s contention, harmless error analysis is not applicable” (… see People v Buchanan, 13 NY3d 1, 4 [2009] … . We therefore reverse the judgment and grant a new trial … .

We reject the People’s further contention that defendant’s conviction became final before the Court of Appeals’s decision in Buchanan and that the decision should not be applied retroactively to allow a collateral attack on the judgment. In granting defendant’s motion for a writ of error coram nobis, we vacated our prior order and are considering the appeal de novo … . This appeal is therefore not a collateral attack on the judgment. In addition, we are not persuaded by the People’s position that Buchanan should be applied prospectively only. Buchanan did not announce ” new’ rules of law that represent sharp departures from precedent or raise concerns about the orderly administration of justice” … . Instead, we apply the “traditional common-law” rule of deciding this appeal in accordance with the law as it now exists… . People v Hall, 2017 NY Slip Op 09074, Fourth Dept 12-22-17

CRIMINAL LAW (PETITION FOR WRIT OF CORAM NOBIS GRANTED, APPEAL CONSIDERED DE NOVO, TRIAL COURT’S FAILURE TO PUT REASONS FOR RESTRAINING DEFENDANT ON THE RECORD REQUIRED REVERSAL AND A NEW TRIAL (FOURTH DEPT))/CORAM NOBIS (CRIMINAL LAW, APPEALS, PETITION FOR WRIT OF CORAM NOBIS GRANTED, APPEAL CONSIDERED DE NOVO, TRIAL COURT’S FAILURE TO PUT REASONS FOR RESTRAINING DEFENDANT ON THE RECORD REQUIRED REVERSAL AND A NEW TRIAL (FOURTH DEPT))/APPEALS (CRIMINAL LAW, CORAM NOBIS, FAILURE TO RAISE IMPORTANT ISSUES ON APPEAL, ETITION FOR WRIT OF CORAM NOBIS GRANTED, APPEAL CONSIDERED DE NOVO, TRIAL COURT’S FAILURE TO PUT REASONS FOR RESTRAINING DEFENDANT ON THE RECORD REQUIRED REVERSAL AND A NEW TRIAL (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, CORAM NOBIS, FAILURE TO RAISE IMPORTANT ISSUES ON APPEAL, ETITION FOR WRIT OF CORAM NOBIS GRANTED, APPEAL CONSIDERED DE NOVO, TRIAL COURT’S FAILURE TO PUT REASONS FOR RESTRAINING DEFENDANT ON THE RECORD REQUIRED REVERSAL AND A NEW TRIAL (FOURTH DEPT))

December 22, 2017

/ Appeals, Criminal Law

WAIVER OF APPEAL INVALID (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined defendant’s waiver of the right to appeal was insufficient:

We agree with defendant that his waiver of the right to appeal was not valid because, during the plea colloquy, County Court “conflated the appeal waiver with the rights automatically waived by the guilty plea” … . The court indicated that the waiver of the right to appeal was “[o]ne other condition,” and that statement “was immediately preceded by a colloquy concerning the rights automatically forfeited by a guilty plea”… . In addition, the court further muddied the distinction by indicating that the waiver of the right to appeal “is separate and part [sic] from your plea of guilty,” rather than indicating that it was a condition of the guilty plea but separate from the rights that defendant automatically forfeited by the plea … . Consequently, ” the record fails to establish that defendant understood that the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty’ “… . People v Smith, 2017 NY Slip Op 08949, Fourth Dept 12-22-17

CRIMINAL LAW (WAIVER OF APPEAL INVALID (FOURTH DEPT))/APPEALS (CRIMINAL LAW, WAIVER OF APPEAL INVALID (FOURTH DEPT))

December 22, 2017

/ Attorneys, Criminal Law

DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, QUESTIONS SUFFICIENTLY RAISED ABOUT WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INTERVIEW ALIBI WITNESSES AND DEFENDANT’S ACTUAL INNOCENCE (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant’s motion to vacate his conviction should not have been denied without a hearing. The affidavits in support of the motion raised a question whether defense counsel was ineffective for failing to interview alibi witnesses and sufficiently raised a claim of actual innocence:

We agree with the contention of defendant in his main and supplemental pro se briefs that he was entitled to a hearing on his claims of ineffective assistance of counsel and actual innocence. With respect to defendant’s claim of ineffective assistance of counsel, we conclude that nonrecord facts may support defendant’s contention that his trial counsel failed to investigate two potential alibi witnesses and was ineffective in failing to present the testimony of one or both of those witnesses. It is well settled that “[a] defendant’s right to effective assistance of counsel includes defense counsel’s reasonable investigation and preparation of defense witnesses” … . Here, defendant’s CPL 440.10 motion was supported by the police investigation report, which demonstrated that the alibi witnesses had been interviewed by the police and made statements supporting defendant’s alibi. We note that the police report was annexed to the People’s CPL 710.30 notice.

In addition, defendant submitted his own affidavit and an affidavit from one of the alibi witnesses likewise asserting facts supporting defendant’s alibi claim. While a hearing may ultimately reveal that “counsel made reasonably diligent efforts to locate the [alibi] witness[es]” and present their testimony at trial … , or that there was a strategic reason for the failure to do so… , we agree with defendant that his submissions raised factual issues requiring a hearing … .

Additionally, we conclude that County Court erred in denying defendant’s motion without holding a hearing to address defendant’s claim that the judgment of conviction should be vacated pursuant to CPL 440.10 (1) (h) based on his actual innocence of the crimes of which he was convicted… . We conclude that defendant made a prima facie showing of actual innocence sufficient to warrant a hearing on the merits … . Specifically, in support of his claim of actual innocence, he submitted competent evidence establishing an alibi through, inter alia, witnesses who, although identified before trial in a police report attached to the People’s 710.30 notice, did not testify at trial. People v Pottinger, 2017 NY Slip Op 08972, Fourth Dept 12-22-17

CRIMINAL LAW (DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, QUESTIONS SUFFICIENTLY RAISED ABOUT WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INTERVIEW ALIBI WITNESSES AND DEFENDANT’S ACTUAL INNOCENCE (FOURTH DEPT))/ATTORNEYS (CRIMINAL LAW, INEFFECTIVE ASSISTANCE, DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, QUESTIONS SUFFICIENTLY RAISED ABOUT WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INTERVIEW ALIBI WITNESSES AND DEFENDANT’S ACTUAL INNOCENCE (FOURTH DEPT))/VACATE CONVICTION, MOTION TO (DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, QUESTIONS SUFFICIENTLY RAISED ABOUT WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INTERVIEW ALIBI WITNESSES AND DEFENDANT’S ACTUAL INNOCENCE (FOURTH DEPT))/INEFFECTIVE ASSISTANCE (DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, QUESTIONS SUFFICIENTLY RAISED ABOUT WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INTERVIEW ALIBI WITNESSES AND DEFENDANT’S ACTUAL INNOCENCE (FOURTH DEPT))/ACTUAL INNOCENCE (DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, QUESTIONS SUFFICIENTLY RAISED ABOUT WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INTERVIEW ALIBI WITNESSES AND DEFENDANT’S ACTUAL INNOCENCE (FOURTH DEPT))

December 22, 2017

/ Criminal Law

82 YEAR SENTENCE FOR THREE BURGLARIES AND RECKLESS ENDANGERMENT DEEMED TOO HARSH FOR THIS PERSISTENT FELONY OFFENDER, REDUCED TO 35 YEARS TO LIFE (FOURTH DEPT).

The Fourth Department affirmed defendant’s burglary and reckless endangerment convictions and was properly determined to be a persistent violent felony offender. However, the aggregate sentence of 82 years to life was deemed too harsh and was reduced to 35 years to life. People v Barnes, 2017 NY Slip Op 09004, Fourth Dept 12-22-17

CRIMINAL LAW (82 YEAR SENTENCE FOR THREE BURGLARIES AND RECKLESS ENDANGERMENT DEEMED TOO HARSH FOR THIS PERSISTENT FELONY OFFENDER, REDUCED TO 35 YEARS TO LIFE (FOURTH DEPT))/SENTENCING (82 YEAR SENTENCE FOR THREE BURGLARIES AND RECKLESS ENDANGERMENT DEEMED TOO HARSH FOR THIS PERSISTENT FELONY OFFENDER, REDUCED TO 35 YEARS TO LIFE (FOURTH DEPT))

December 22, 2017

/ Criminal Law

FAILURE TO INFORM DEFENDANT OF THE PERIOD OF POSTRELEASE SUPERVISION FOR ONE COUNT INFECTED THE PLEAS TO THE OTHER COUNTS AS WELL (FOURTH DEPT).

The Fourth Department, vacating defendant’s guilty pleas, determined that the failure to inform the defendant of the period of postrelease supervision for one count infected the pleas to the other counts as well:

Defendant appeals from a judgment convicting her upon her plea of guilty of three counts of kidnapping in the second degree … and one count of criminal possession of a weapon in the second degree … . During the plea colloquy, County Court indicated that it would sentence defendant to concurrent indeterminate terms of 3 to 6 years pursuant to Penal Law § 60.12. Section 60.12 allows a court to impose indeterminate terms of imprisonment for certain defendants who are facing determinate terms of sentences under section 70.02 if the defendant has been the victim of domestic abuse. The court here in fact imposed concurrent, indeterminate terms of 3 to 6 years pursuant to section 60.12 (2) (a) for the kidnapping counts, but imposed a concurrent determinate sentence of 3½ years with 5 years of postrelease supervision on the weapon count pursuant to sections 70.02 (3) (b) and 70.45 (2) (f).

The People correctly concede that the court failed to fulfill its obligation to advise defendant at the time of her plea that the sentence imposed upon her conviction of the weapon count would include a period of postrelease supervision… . We therefore reverse the judgment and vacate defendant’s plea … . Contrary to the People’s contention, under the circumstances of this case, the entire plea must be vacated and not merely the plea on the weapon count. The entire plea agreement was infected by the court’s error in failing to advise defendant of postrelease supervision, and this is not a case in which the counts may be treated separately … . People v Maxwell, 2017 NY Slip Op 08986, Fourth Dept 12-22-17

CRIMINAL LAW (FAILURE TO INFORM DEFENDANT OF THE PERIOD OF POSTRELEASE SUPERVISION FOR ONE COUNT INFECTED THE PLEAS TO THE OTHER COUNTS AS WELL (FOURTH DEPT))/SENTENCING (FAILURE TO INFORM DEFENDANT OF THE PERIOD OF POSTRELEASE SUPERVISION FOR ONE COUNT INFECTED THE PLEAS TO THE OTHER COUNTS AS WELL (FOURTH DEPT))/POSTRELEASE SUPERVISION (FAILURE TO INFORM DEFENDANT OF THE PERIOD OF POSTRELEASE SUPERVISION FOR ONE COUNT INFECTED THE PLEAS TO THE OTHER COUNTS AS WELL (FOURTH DEPT))/GUILTY PLEA, MOTION TO VACATE (FAILURE TO INFORM DEFENDANT OF THE PERIOD OF POSTRELEASE SUPERVISION FOR ONE COUNT INFECTED THE PLEAS TO THE OTHER COUNTS AS WELL (FOURTH DEPT))

December 22, 2017

/ Criminal Law, Sex Offender Registration Act (SORA)

DEFENDANT PROPERLY ASSESSED 80 POINTS FOR CHILD PORNOGRAPHY IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK LEVEL PROCEEDING, CRITERIA EXPLAINED, DETERMINATION REVERSED HOWEVER BECAUSE COUNTY COURT DID NOT CONSIDER DOWNWARD DEPARTURE REQUEST (FOURTH DEPT).

The Fourth Department, reversing County Court, determined defendant’s request for a downward departure in this Sex Offender Registration Act (SORA) risk level assessment should have been considered. Defendant was properly assessed 80 points in this child pornography case:

The Court of Appeals has noted that “the children depicted in child pornography are necessarily counted as victims under [risk] factor 3, and nothing in that factor’s plain terms suggests otherwise. After all, factor 3 permits the assessment of 30 points [where, as here,] [t]here were three or more victims’ involved in a defendant’s current sex crime” … . The Court of Appeals has also made it clear that “the plain terms of [risk] factor 7 authorize the assessment of points based on a child pornography offender’s stranger relationship with the children featured in his or her child pornography files, and thus points can be properly assessed under that factor due to an offender’s lack of prior acquaintance with the children depicted in the files” … . Here, the People established by clear and convincing evidence that the children depicted in the images on defendant’s computer were strangers to defendant. Consequently, the court properly concluded that “defendant should be assessed 30 points under risk factor 3, number of victims,’ based on the numerous child victims depicted in the images he possessed . . . and 20 points under risk factor 7, relationship with victim, stranger,’ [inasmuch] as defendant did not know his child victims.”

We agree with defendant, however, that the court erred in failing to consider his request for a downward departure from the presumptive level two risk yielded by his 80-point total score on the risk assessment instrument … .. We therefore reverse the order and remit the matter to County Court for a determination of whether defendant met his “initial burden of (1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the Guidelines; and (2) establishing the facts in support of its existence by a preponderance of the evidence’ ” … and, if so, for the court to exercise its discretion whether to grant defendant’s request for a downward departure … . People v Tutty, 2017 NY Slip Op 09029, Fourth Dept 12-22-17

CRIMINAL LAW (SORA, DEFENDANT PROPERLY ASSESSED 80 POINTS FOR CHILD PORNOGRAPHY IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK LEVEL PROCEEDING, DETERMINATION REVERSED HOWEVER BECAUSE COUNTY COURT DID NOT CONSIDER DOWNWARD DEPARTURE REQUEST (FOURTH DEPT))/SEX OFFENDER REGISTRATION ACT (SORA) (DEFENDANT PROPERLY ASSESSED 80 POINTS FOR CHILD PORNOGRAPHY IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK LEVEL PROCEEDING, DETERMINATION REVERSED HOWEVER BECAUSE COUNTY COURT DID NOT CONSIDER DOWNWARD DEPARTURE REQUEST (FOURTH DEPT))/DOWNWARD DEPARTURE (SORA, DEFENDANT PROPERLY ASSESSED 80 POINTS FOR CHILD PORNOGRAPHY IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK LEVEL PROCEEDING, DETERMINATION REVERSED HOWEVER BECAUSE COUNTY COURT DID NOT CONSIDER DOWNWARD DEPARTURE REQUEST (FOURTH DEPT))

December 22, 2017

/ Criminal Law

DEFENDANT’S REQUEST FOR A DARDEN HEARING SHOULD HAVE BEEN GRANTED, PEOPLE DID NOT DEMONSTRATE INFORMANT WAS LEGITIMATELY UNAVAILABLE (FOURTH DEPT).

The Fourth Department determined defendant’s request for a Darden hearing should not have been denied. The People did not demonstrate the informant who provided information to support a search warrant application was legitimately unavailable for the hearing:

Where, as here, there is insufficient evidence to establish probable cause supporting a search warrant without the statements of a confidential informant, the People must make the informant available for questioning in camera … . If, however, the informant cannot be produced despite the diligent efforts of the People, “the People may instead establish the existence of [the] confidential informant[] through extrinsic evidence’ after demonstrating that the informant is legitimately unavailable’ ” … . Here, the court summarily denied defendant’s request upon the People’s bare assertion that the informant was in California and thus unavailable. Although the People subsequently produced an unsworn letter, purportedly from the informant’s drug treatment facility in California, stating that the informant required uninterrupted care, that letter, without more, is insufficient to demonstrate that the informant was legitimately unavailable. We conclude that the People failed to establish that an exception to the Darden rule is applicable, and thus the court erred in denying defendant’s request for a Darden hearing … . We therefore hold the case, reserve decision, and remit the matter to County Court to conduct an appropriate hearing, at which the People will not be precluded from offering evidence that the informant is currently unavailable. People v Givans, 2017 NY Slip Op 09066, Fourth Dept 12-22-17

CRIMINAL LAW (DARDEN HEARING, DEFENDANT’S REQUEST FOR A DARDEN HEARING SHOULD HAVE BEEN GRANTED, PEOPLE DID NOT DEMONSTRATE INFORMANT WAS LEGITIMATELY UNAVAILABLE (FOURTH DEPT))/DARDEN HEARING (CRIMINAL LAW, DEFENDANT’S REQUEST FOR A DARDEN HEARING SHOULD HAVE BEEN GRANTED, PEOPLE DID NOT DEMONSTRATE INFORMANT WAS LEGITIMATELY UNAVAILABLE (FOURTH DEPT))/SEARCH AND SEIZURE (DARDEN HEARING, DEFENDANT’S REQUEST FOR A DARDEN HEARING SHOULD HAVE BEEN GRANTED, PEOPLE DID NOT DEMONSTRATE INFORMANT WAS LEGITIMATELY UNAVAILABLE (FOURTH DEPT))

December 22, 2017

/ Civil Procedure, Limited Liability Company Law

PLAINTIFF FAILED TO COMPLY WITH THE STATUTORY REQUIREMENTS FOR SERVICE OF PROCESS ON AN UNAUTHORIZED FOREIGN LIMITED LIABILITY COMPANY, THE COURT NEVER ACQUIRED JURISDICTION (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that plaintiff did not strictly comply with the requirements for service of process on defendant unauthorized foreign limited liability company. Plaintiff had been granted a default judgment dismissing the foreclosure proceeding as time-barred. Defendant’s motion to vacate the default judgment was denied. The Fourth Department dismissed the complaint (without prejudice) finding that the flaws in service deprived the court of jurisdiction:

Pursuant to [Limited Liability Company law 304], “[f]irst, service upon the unauthorized foreign limited liability company may be made by personal delivery of the summons and complaint, with the appropriate fee, to the Secretary of State … . That was done by plaintiff in this case. “Second, in order for the personal delivery to the Secretary of State to be sufficient,’ the plaintiff must also give the defendant direct notice of its delivery of the process to the Secretary of State, along with a copy of the process” … . The direct notice may be given to the defendant personally… . That was attempted by plaintiff, but the process server was unable to make personal service inasmuch as the property was “unoccupied.” In the alternative, “[t]he direct notice may be sent to the defendant by registered mail, return receipt requested”… . That was attempted by plaintiff in this case, but the mail was returned to plaintiff as undeliverable. …

… [P]laintiff failed to comply with step two of Limited Liability Company Law § 304. … Inasmuch as plaintiff failed to comply with step two, she necessarily also failed to comply with step three, which would show that a party complied with the service requirements of section 304. Initially, we note that plaintiff filed an affidavit of service showing personal service upon the Secretary of State and a notation that service was made upon defendant by registered mail, return receipt requested, but she did not file an affidavit of compliance… . Moreover, because plaintiff did not comply with step two, she was unable to file a return receipt signed by defendant “or other official proof of delivery” … . Purportedly attached to the affidavit of service filed by plaintiff was a copy of the envelope mailed to defendant by registered mail and returned to plaintiff as undeliverable. Rather than showing proof of delivery, plaintiff showed just the opposite, i.e., that the process was not delivered to defendant. We therefore conclude that the motion to vacate the default judgment on the ground of lack of jurisdiction should have been granted… . Chan v Onyx Capital, LLC, 2017 NY Slip Op 08966, Fourth Dept 12-22-17

CIVIL PROCEDURE (SERVICE OF PROCESS, PLAINTIFF FAILED TO COMPLY WITH THE STATUTORY REQUIREMENTS FOR SERVICE OF PROCESS ON AN UNAUTHORIZED FOREIGN LIMITED LIABILITY COMPANY, THE COURT NEVER ACQUIRED JURISDICTION (FOURTH DEPT))/LIMITED LIABILITY COMPANY LAW (SERVICE OF PROCESS, PLAINTIFF FAILED TO COMPLY WITH THE STATUTORY REQUIREMENTS FOR SERVICE OF PROCESS ON AN UNAUTHORIZED FOREIGN LIMITED LIABILITY COMPANY, THE COURT NEVER ACQUIRED JURISDICTION (FOURTH DEPT))/SERVICE OF PROCESS (LIMITED LIABILITY COMPANY LAW, PLAINTIFF FAILED TO COMPLY WITH THE STATUTORY REQUIREMENTS FOR SERVICE OF PROCESS ON AN UNAUTHORIZED FOREIGN LIMITED LIABILITY COMPANY, THE COURT NEVER ACQUIRED JURISDICTION (FOURTH DEPT))

December 22, 2017

Search Results

ACQUISITION OF CELL PHONE LOCATION DATA, PLACING DEFENDANT NEAR THE MURDER SCENE, DID NOT REQUIRE A WARRANT SUPPORTED BY PROBABLE CAUSE (FOURTH DEPT).

EVIDENCE DEFENDANT CONSTRUCTIVELY POSSESSED DRUGS THAT WERE LOCATED IN HIS SISTER’S (NOT HIS) RESIDENCE SUFFICIENT, SENTENCE REDUCED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

PETITION FOR WRIT OF CORAM NOBIS GRANTED, APPEAL CONSIDERED DE NOVO, TRIAL COURT’S FAILURE TO PUT REASONS FOR RESTRAINING DEFENDANT ON THE RECORD REQUIRED REVERSAL AND A NEW TRIAL (FOURTH DEPT).

WAIVER OF APPEAL INVALID (FOURTH DEPT).

DEFENDANT’S MOTION TO VACATE HIS CONVICTION SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING, QUESTIONS SUFFICIENTLY RAISED ABOUT WHETHER DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO INTERVIEW ALIBI WITNESSES AND DEFENDANT’S ACTUAL INNOCENCE (FOURTH DEPT).

82 YEAR SENTENCE FOR THREE BURGLARIES AND RECKLESS ENDANGERMENT DEEMED TOO HARSH FOR THIS PERSISTENT FELONY OFFENDER, REDUCED TO 35 YEARS TO LIFE (FOURTH DEPT).

FAILURE TO INFORM DEFENDANT OF THE PERIOD OF POSTRELEASE SUPERVISION FOR ONE COUNT INFECTED THE PLEAS TO THE OTHER COUNTS AS WELL (FOURTH DEPT).

DEFENDANT PROPERLY ASSESSED 80 POINTS FOR CHILD PORNOGRAPHY IN THIS SEX OFFENDER REGISTRATION ACT (SORA) RISK LEVEL PROCEEDING, CRITERIA EXPLAINED, DETERMINATION REVERSED HOWEVER BECAUSE COUNTY COURT DID NOT CONSIDER DOWNWARD DEPARTURE REQUEST (FOURTH DEPT).

DEFENDANT’S REQUEST FOR A DARDEN HEARING SHOULD HAVE BEEN GRANTED, PEOPLE DID NOT DEMONSTRATE INFORMANT WAS LEGITIMATELY UNAVAILABLE (FOURTH DEPT).

PLAINTIFF FAILED TO COMPLY WITH THE STATUTORY REQUIREMENTS FOR SERVICE OF PROCESS ON AN UNAUTHORIZED FOREIGN LIMITED LIABILITY COMPANY, THE COURT NEVER ACQUIRED JURISDICTION (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.