Page 1031 – New York Appellate Digest

/ Criminal Law, Evidence, Judges

EXCESSIVE INTERVENTION IN THE QUESTIONING OF DEFENDANT AND WITNESSES BY THE TRIAL JUDGE REQUIRED A NEW TRIAL, DEFENDANT SHOULD NOT HAVE BEEN QUESTIONED ABOUT HIS BEING INCARCERATED DURING THE TRIAL (SECOND DEPT).

The Second Department reversed defendant’s conviction in this murder case because the trial judge took over the questioning of one of the complaining witness and intervened in the questioning of the defendant. The court noted the prosecutor should not have questioned the defendant about his being incarcerated during the trial:

During the course of the trial, the Supreme Court repeatedly and prejudicially questioned the defendant, who testified in his own behalf, and also extensively intervened in the questioning of prosecution witnesses. Although defense counsel did not specifically object to the court’s questioning of the witnesses … .

While trial judges play a vital role in “clarifying confusing testimony and facilitating the orderly and expeditious progress of the trial,” their power to examine witnesses “is one that should be exercised sparingly” … . Indeed, such power “carries with it so many risks of unfairness that it should be a rare instance when the court rather than counsel examines a witness” … .

Here, the Supreme Court effectively took over the direct examination of one of the complaining witnesses at key moments in her testimony where she was describing how the defendant shot the victim … . Moreover, in its extensive questioning of the defendant, the court repeatedly highlighted apparent inconsistencies in the defendant’s testimony. Viewing the record as a whole, the court assumed the appearance, if not the function, of an advocate at the trial by its extensive examination of certain witnesses … . Accordingly, we must remit the matter to the Supreme Court, Kings County, for a new trial.

As a new trial must be ordered, we note that it was improper for the prosecutor to elicit from the defendant the fact that he was incarcerated pending trial … , as no legitimate State interest was served by disclosing that information under the circumstances of this case … . People v Estevez, 2017 NY Slip Op 07615, Second Dept 11-1-17

CRIMINAL LAW (EXCESSIVE INTERVENTION IN THE QUESTIONING OF DEFENDANT AND WITNESSES BY THE TRIAL JUDGE REQUIRED A NEW TRIAL, DEFENDANT SHOULD NOT HAVE BEEN QUESTIONED ABOUT HIS BEING INCARCERATED DURING THE TRIAL (SECOND DEPT))/JUDGES (CRIMINAL LAW, EXCESSIVE INTERVENTION IN THE QUESTIONING OF DEFENDANT AND WITNESSES BY THE TRIAL JUDGE REQUIRED A NEW TRIAL, DEFENDANT SHOULD NOT HAVE BEEN QUESTIONED ABOUT HIS BEING INCARCERATED DURING THE TRIAL (SECOND DEPT))/EVIDENCE (CRIMINAL LAW, EXCESSIVE INTERVENTION IN THE QUESTIONING OF DEFENDANT AND WITNESSES BY THE TRIAL JUDGE REQUIRED A NEW TRIAL, DEFENDANT SHOULD NOT HAVE BEEN QUESTIONED ABOUT HIS BEING INCARCERATED DURING THE TRIAL (SECOND DEPT))

November 01, 2017

/ Criminal Law

HOT PURSUIT JUSTIFIED WARRANTLESS ARREST IN DEFENDANT’S HOME (SECOND DEPT).

The Second Department determined defendant’s motion to suppress his statements based upon his warrantless arrest in the garage of his home was properly denied. Defendant had failed to stop, led the arresting officer on a high speed chase, and hid in the rafters of his garage:

… [T]he People established that the detective’s entry was justified by the doctrine of hot pursuit. “[S]ubject only to carefully drawn and narrow exceptions, a warrantless search of an individual’s home is per se unreasonable and hence unconstitutional” … . However, “exigent circumstances or a true hot pursuit’ may justify a warrantless entry”… . “[A] criminal suspect may not thwart an otherwise proper arrest which has been set in motion in a public place by retreating into his residence”… . Here, the exigent circumstances justifying the hot pursuit of the defendant into his garage included the defendant’s observed erratic and dangerous driving, the crashing and abandoning of his vehicle, and the police officers’ peaceful entry through the open door of the garage … . People v Caputo, 2017 NY Slip Op 07614, Second Dept 11-1-17

CRIMINAL LAW (HOT PURSUIT JUSTIFIED WARRANTLESS ARREST IN DEFENDANT’S HOME (SECOND DEPT))/SUPPRESS, MOTION TO (CRIMINAL LAW, HOT PURSUIT JUSTIFIED WARRANTLESS ARREST IN DEFENDANT’S HOME (SECOND DEPT))/WARRANTLESS ARREST (HOT PURSUIT JUSTIFIED WARRANTLESS ARREST IN DEFENDANT’S HOME (SECOND DEPT))/PAYTON RULE (WARRANTLESS ARREST, HOT PURSUIT JUSTIFIED WARRANTLESS ARREST IN DEFENDANT’S HOME (SECOND DEPT))/HOT PURSUIT (WARRENTLESS ARREST, HOT PURSUIT JUSTIFIED WARRANTLESS ARREST IN DEFENDANT’S HOME (SECOND DEPT)

November 01, 2017

/ Evidence, Foreclosure

AFFIDAVIT WAS SUFFICIENT TO DEMONSTRATE PLAINTIFF BANK’S ENTITLEMENT TO SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION UNDER THE CONTROLLING ADMINISTRATIVE ORDER AND THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (FIRST DEPT).

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Andrias, over a dissent, determined plaintiff bank (BOA) was entitled to summary judgment in this foreclosure action. At issue was whether an affidavit (by Mattera) in support of a prior summary judgment proceeding satisfied the the operative Administrative Order and the business records exception to the hearsay rule:

Administrative Order 431/11 … requires the plaintiff’s counsel in a residential mortgage foreclosure action to file an affirmation confirming that he or she communicated with a representative of the plaintiff who confirmed the factual accuracy of the plaintiff’s pleadings, supporting documentation and submissions to the court … . …

To fulfill his obligations under Administrative Order 431/11, plaintiff’s counsel submitted an affidavit that comported with the form provided in Administrative Order 431/11. Counsel stated that … he had communicated with Mattera … . …

The dissent finds this affidavit deficient, stating that “because Mattera’s affidavits do not establish a complete review of, or the indicia of reliability necessary to lay a business records foundation for, the records pre-dating … acquisition of defendant’s mortgage, counsel may not rely upon alleged communications with Mattera to comply with the requirements of the Administrative Order.” However, defendant, who has continued to reside on the premises for the last 10 years without paying her mortgage, did not dispute her default or challenge the accuracy or sufficiency of Mattera’s affidavit on the third summary judgment motion.

Furthermore, CLPR 4518(a) does not require a person to have personal knowledge of each of the facts asserted in the affidavit of merit put before the court as evidence of a defendant’s default in payment … . Thus, in seeking to enforce a loan, an assignee of an original lender or intermediary predecessor may use an original loan file prepared by its assignor, when it relies upon those records in the regular course of its business… ..

Here, Mattera … satisfied these standards … . Bank of Am., N.A. v Brannon, 2017 NY Slip Op 07578, First Dept 10-31-17

FORECLOSURE (AFFIDAVIT WAS SUFFICIENT TO DEMONSTRATE PLAINTIFF BANK’S ENTITLEMENT TO SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION UNDER THE CONTROLLING ADMINISTRATIVE ORDER AND THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (FIRST DEPT))/EVIDENCE (FORECLOSURE, AFFIDAVIT WAS SUFFICIENT TO DEMONSTRATE PLAINTIFF BANK’S ENTITLEMENT TO SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION UNDER THE CONTROLLING ADMINISTRATIVE ORDER AND THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (FIRST DEPT))/HEARSAY (BUSINESS RECORDS EXCEPTION, FORECLOSURE, AFFIDAVIT WAS SUFFICIENT TO DEMONSTRATE PLAINTIFF BANK’S ENTITLEMENT TO SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION UNDER THE CONTROLLING ADMINISTRATIVE ORDER AND THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (FIRST DEPT))/BUSINESS RECORDS (EXCEPTION TO HEARSAY RULE, FORECLOSURE, AFFIDAVIT WAS SUFFICIENT TO DEMONSTRATE PLAINTIFF BANK’S ENTITLEMENT TO SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION UNDER THE CONTROLLING ADMINISTRATIVE ORDER AND THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (FIRST DEPT))

October 31, 2017

/ Land Use, Zoning

TRAFFIC CONCERNS JUSTIFIED THE ZONING BOARD’S RESTRICTIONS ON A RESTAURANT’S HOURS OF OPERATION AND REQUIREMENT FOR VALET PARKING (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the zoning board of appeals’ (ZBA’s) restrictions on the hours of operation of petitioner’s restaurant, as well as the requirement for valey parking, were appropriate. The hours coincided with the availability of off-street parking:

“A zoning board may, where appropriate, impose reasonable conditions and restrictions as are directly related to and incidental to the proposed use of the property, and aimed at minimizing the adverse impact to an area that might result from the grant of a variance or special permit”… . “However, if a zoning board imposes unreasonable or improper conditions, those conditions may be annulled although the variance is upheld'” … .

Here, the ZBA’s conditions requiring valet parking and limiting the petitioner’s hours of operation to coincide with the hours of access to the 40 off-street parking spaces granted in the license agreement were proper because the conditions related directly to the use of the land and were intended to protect the neighboring commercial properties from the potential adverse effects of the petitioner’s operation, such as the anticipated increase in traffic congestion and parking problems… ” The need to alleviate traffic congestion by requiring adequate parking facilities’ is a legitimate consideration for a zoning board of appeals” … .

… The ZBA was entitled to rely on the testimony of the local store owners, since “a zoning board’s reliance upon specific, detailed testimony of neighbors based on personal knowledge does not render a variance determination the product of generalized and conclusory community opposition”… . Their testimony was supported by the observation of the petitioner’s own expert that there is a great demand for parking in the area of the subject restaurant. Members of the ZBA were also entitled to rely on their own personal knowledge of the area in reaching their decision … . Matter of Bonefish Grill, LLC v Zoning Bd. of Appeals of the Vil. of Rockville Ctr., 2017 NY Slip Op 06643, Fourth Dept 9-29-17

ZONING (TRAFFIC CONCERNS JUSTIFIED THE ZONING BOARD’S RESTRICTIONS ON A RESTAURANT’S HOURS OF OPERATION AND REQUIREMENT FOR VALET PARKING (FOURTH DEPT))/VARIANCES (CONDITIONS, TRAFFIC CONCERNS JUSTIFIED THE ZONING BOARD’S RESTRICTIONS ON A RESTAURANT’S HOURS OF OPERATION AND REQUIREMENT FOR VALET PARKING (FOURTH DEPT))/PARKING (ZONING, TRAFFIC CONCERNS JUSTIFIED THE ZONING BOARD’S RESTRICTIONS ON A RESTAURANT’S HOURS OF OPERATION AND REQUIREMENT FOR VALET PARKING (FOURTH DEPT))/TRAFFIC (ZONING, TRAFFIC CONCERNS JUSTIFIED THE ZONING BOARD’S RESTRICTIONS ON A RESTAURANT’S HOURS OF OPERATION AND REQUIREMENT FOR VALET PARKING (FOURTH DEPT))

September 29, 2017

/ Contract Law, Real Estate, Tax Law

DOCTRINE OF TAX ESTOPPEL PREVENTED DEFENDANTS FROM ASSERTING FACTS ABOUT THE SALE OF PROPERTY CONTRARY TO THE INFORMATION IN THE REAL PROPERTY TRANSFER REPORT, PLAINTIFF’S ACTION TO ENFORCE A RIGHT OF FIRST REFUSAL SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the doctrine of tax estoppel prevented defendants from asserting facts contrary to the information provided in the Real Property Transfer Report (RPT report). Plaintiff had a right of first refusal on the sale of defendants’ commercial property. Defendants sold the property without giving plaintiff the right of first refusal, claiming it was not a bona fide sale because the same person controlled the seller and the buyer, an allegation negated by the RPT report:

Under the doctrine of tax estoppel, ” [a] party to litigation may not take a position contrary to a position taken in [a] tax return’ ” … . Here, 428 Co. and SS jointly submitted a Real Property Transfer Report (RPT report) … to the Department of Taxation and Finance in which they certified that the transfer of the subject property was not a “sale between related companies or partners in business.” …

The sworn statements made in the RPT report further estop defendants from asserting that various mortgage assumptions worth over $2 million constituted part of the purchase price, and that plaintiff was therefore unwilling to purchase the property “at the same price and under the same terms” … . The instructions for the tax form require that any mortgage assumptions be listed as part of the “Full Sale Price” on the RPT report, and [defendants] did not do so here. … [Defendants] listed only a cash sale price of $238,493 as the “Full Sale Price” on the RPT report, and it is undisputed that plaintiff was ready, willing, and able to purchase the property for that amount. Amalfi, Inc. v 428 Co., Inc., 2017 NY Slip Op 06770, Fourth Dept 9-29-17

REAL ESTATE (DOCTRINE OF TAX ESTOPPEL PREVENTED DEFENDANTS FROM ASSERTING FACTS ABOUT THE SALE OF PROPERTY CONTRARY TO THE INFORMATION IN THE REAL PROPERTY TRANSFER REPORT, PLAINTIFF’S ACTION TO ENFORCE A RIGHT OF FIRST REFUSAL SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/CONTRACT LAW (REAL ESTATE, RIGHT OF FIRST REFUSAL, DOCTRINE OF TAX ESTOPPEL PREVENTED DEFENDANTS FROM ASSERTING FACTS ABOUT THE SALE OF PROPERTY CONTRARY TO THE INFORMATION IN THE REAL PROPERTY TRANSFER REPORT, PLAINTIFF’S ACTION TO ENFORCE A RIGHT OF FIRST REFUSAL SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/TAX LAW (DOCTRINE OF TAX ESTOPPEL PREVENTED DEFENDANTS FROM ASSERTING FACTS ABOUT THE SALE OF PROPERTY CONTRARY TO THE INFORMATION IN THE REAL PROPERTY TRANSFER REPORT, PLAINTIFF’S ACTION TO ENFORCE A RIGHT OF FIRST REFUSAL SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))/TAX ESTOPPEL (DOCTRINE OF TAX ESTOPPEL PREVENTED DEFENDANTS FROM ASSERTING FACTS ABOUT THE SALE OF PROPERTY CONTRARY TO THE INFORMATION IN THE REAL PROPERTY TRANSFER REPORT, PLAINTIFF’S ACTION TO ENFORCE A RIGHT OF FIRST REFUSAL SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT))

September 29, 2017

/ Negligence

WATER ON THE BATHROOM FLOOR NEAR THE SHOWER WAS NECESSARILY INCIDENTAL TO THE USE OF THE SHOWER AND WAS NOT AN ACTIONABLE CONDITION IN THIS SLIP AND FALL CASE (FOURTH DEPT).

The Fourth Department determined the complaint in this slip and fall case was properly dismissed. Plaintiff’s daughter slipped and fell on water on the bathroom floor on defendants’ property. The court held that water on the floor near the shower was not actionable:

Defendants’ submissions established that the daughter slipped on the bathroom floor when she stepped out of the shower to retrieve a brush while the water was running. The daughter stated during her deposition that, although the shower curtain had been closed and no water was falling outside the bathtub prior to the accident, as a result of her opening the curtain while the water was running, there was some water on the floor around the bathtub when she stepped out of the bathtub. Contrary to plaintiff’s contention, ” a wet floor—especially in a bathroom where one can expect some water to make its way out of the shower to the floor—is not enough, standing alone, to establish negligence’ ” … Here, defendants established that the amount of water present on the floor “was a condition that was necessarily incidental’ to the use of the shower[] . . . and thus that it did not by itself constitute a dangerous condition”… . Defendants further established that the accident was not attributable to a defect in the floor or the bath towel that they provided to the daughter, which she placed on the floor beside the bathtub… . Furthermore, even assuming, arguendo, that a dangerous condition existed, we conclude that defendants met their burden by establishing that they neither created the dangerous condition nor had actual or constructive notice thereof … . Keller v Keller, 2017 NY Slip Op 06773, Fourth Dept 9-29-17

NEGLIGENCE (WATER ON THE BATHROOM FLOOR NEAR THE SHOWER WAS NECESSARILY INCIDENTAL TO THE USE OF THE SHOWER AND WAS NOT AN ACTIONABLE CONDITION IN THIS SLIP AND FALL CASE (FOURTH DEPT))/SLIP AND FALL (WATER ON THE BATHROOM FLOOR NEAR THE SHOWER WAS NECESSARILY INCIDENTAL TO THE USE OF THE SHOWER AND WAS NOT AN ACTIONABLE CONDITION IN THIS SLIP AND FALL CASE (FOURTH DEPT))/BATHROOMS (SLIP AND FALL, WATER ON THE BATHROOM FLOOR NEAR THE SHOWER WAS NECESSARILY INCIDENTAL TO THE USE OF THE SHOWER AND WAS NOT AN ACTIONABLE CONDITION IN THIS SLIP AND FALL CASE (FOURTH DEPT))/NECESSARY AND INCIDENTAL (SLIP AND FALL, WATER ON THE BATHROOM FLOOR NEAR THE SHOWER WAS NECESSARILY INCIDENTAL TO THE USE OF THE SHOWER AND WAS NOT AN ACTIONABLE CONDITION IN THIS SLIP AND FALL CASE (FOURTH DEPT)

September 29, 2017

/ Family Law

STIPULATION WHICH WAS NOT MERGED INTO THE JUDGMENT OF DIVORCE SHOULD NOT HAVE BEEN DISMISSED AS UNENFORCEABLE (FOURTH DEPT).

The Fourth Department determined a stipulation which was not merged into the judgment of divorce should not have been dismissed as unenforceable:

It is well settled that a party to a stipulation that is incorporated but not merged into a judgment of divorce “cannot challenge the [enforceability of the] stipulation by way of motion but, rather, must do so by commencement of a plenary action” … . Conversely, a party seeking to enforce the terms of such a stipulation may do so either by a motion to enforce the judgment … . In this case, the issue whether the stipulation was enforceable was not properly before the court because defendant did not commence a plenary action challenging its enforceability. Rather, plaintiff moved to enforce the judgment incorporating the stipulation, and defendant effectively conceded that the stipulation was enforceable when she asserted that the only questions before the court were the valuation of her master’s degree and the extent of plaintiff’s marital interest therein. Thus, we conclude that the court erred in denying plaintiff’s motion on the ground that the stipulation was unenforceable … . Anderson v Anderson, 2017 NY Slip Op 06786, Fourth Dept 9-29-17

FAMILY LAW (DIVORCE, STIPULATION WHICH WAS NOT MERGED INTO THE JUDGMENT OF DIVORCE SHOULD NOT HAVE BEEN DISMISSED AS UNENFORCEABLE (FOURTH DEPT))/STIPULATIONS (DIVORCE, STIPULATION WHICH WAS NOT MERGED INTO THE JUDGMENT OF DIVORCE SHOULD NOT HAVE BEEN DISMISSED AS UNENFORCEABLE (FOURTH DEPT))/DIVORCE (STIPULATION WHICH WAS NOT MERGED INTO THE JUDGMENT OF DIVORCE SHOULD NOT HAVE BEEN DISMISSED AS UNENFORCEABLE (FOURTH DEPT))

September 29, 2017

/ Family Law

EVIDENCE DID NOT SUPPORT FINDING THAT RESPONDENT WAS LEGALLY RESPONSIBLE FOR THE CHILD, NEGLECT DETERMINATION CANNOT STAND (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the evidence was insufficient to support the finding that respondent was legally responsible for the child, therefore the neglect finding could not stand:

… [T]he evidence does not support Family Court’s determination that he is a person legally responsible for the child … , and the court therefore erred in determining that he neglected the child … . Even giving deference to the court’s credibility determinations … , we conclude that petitioner’s witnesses established that respondent and the mother of the child had been living together for some unspecified period of time, but there was nothing further to show that respondent acted “as the functional equivalent of a parent in a familial or household setting” … . There was no testimony that respondent, the mother, and the child were “living together as a family” … , or that respondent provided childcare or financial support, or performed any household duties … . Matter of Kameron V. (Eva V.), 2017 NY Slip Op 06782, Fourth Dept 9-29-17

FAMILY LAW (EVIDENCE DID NOT SUPPORT FINDING THAT RESPONDENT WAS LEGALLY RESPONSIBLE FOR THE CHILD, NEGLECT DETERMINATION CANNOT STAND (FOURTH DEPT))/NEGLECT (EVIDENCE DID NOT SUPPORT FINDING THAT RESPONDENT WAS LEGALLY RESPONSIBLE FOR THE CHILD, NEGLECT DETERMINATION CANNOT STAND (FOURTH DEPT))

September 29, 2017

/ Appeals, Constitutional Law, Criminal Law

WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT).

The Fourth Department determined the denial of youthful offender status was not appealable as it was encompassed by the waiver of appeal. The Fourth Department further determined the purported waiver of defendant’s Fourth Amendment rights as a condition of probation was not valid because there was no relationship between the waiver and the sexual-abuse offense to which defendant pled guilty. The invalid conditions allowed searches of his person, home and personal property, breath, blood and urine testing, and prohibited use or possession of alcohol:

Defendant … contends that various conditions of his probation are not authorized by Penal Law § 65.10. We agree with defendant that his contention is not precluded by the waiver of the right to appeal and does not require preservation inasmuch as his challenges to those conditions implicate the legality of the sentence … . We agree with defendant that the document he signed requiring him to consent to waive his Fourth Amendment right protecting him from unreasonable searches and seizures of his person, home, and personal property, and to submit to chemical tests of his breath, blood, or urine, is not enforceable because it was not related to the probationary goal of rehabilitation … . The waiver and consent to search was ostensibly based on defendant’s acknowledgment that his criminal behavior was related to drug/alcohol abuse, but in fact there was no evidence that defendant was under the influence of alcohol or drugs when he committed the offense or had a history of drug or alcohol abuse … . For similar reasons, we agree with defendant that special condition nine of the conditions of probation, which required him to abstain from the use or possession of alcoholic beverages and to submit to appropriate alcohol testing, is also not enforceable and must be stricken. People v Saraceni, 2017 NY Slip Op 06732, Fourth Dept 9-29-17

CRIMINAL LAW (WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT))/APPEALS (CRIMINAL LAW, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT))/CONSTITUTIONAL LAW (PROBATION CONDITIONS, WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID (FOURTH DEPT))/SEARCH AND SEIZURE (PROBATION CONDITIONS, WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID (FOURTH DEPT))/PROBATION (WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT))/WAIVER OF APPEAL (WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT))/SEXUAL ABUSE (PROBATION CONDITIONS, WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT))

September 29, 2017

/ Criminal Law

DEFENDANT SUFFICIENTLY RAISED THE FIRST STEP OF A BATSON CHALLENGE TO A PEREMPTORY CHALLENGE EXERCISED BY THE PEOPLE, BUT THE NEXT STEPS IN THE BATSON PROCEDURE WERE NOT TAKEN, ALTHOUGH DEFENDANT WAS CONVICTED AFTER A JURY TRIAL, THE MATTER WAS REMITTED TO COMPLETE THE BATSON PROCEDURE (FOURTH DEPT).

The Fourth Department determined defendant had adequately raised a Batson challenge to the prosecutor’s removal of a juror. Because the next steps in the Batson procedure were not taken the case was remitted for that purpose (after a jury trial and conviction):

We agree with defendant that he met his initial burden on his Batson application by demonstrating that the prosecution exercised a peremptory challenge to remove a member of a cognizable racial group from the venire, “and that there exist facts and other relevant circumstances sufficient to raise an inference that the prosecution used its peremptory challenge[] to exclude [that] potential juror[] because of [her] race”… . We note that “the first-step burden in a Batson challenge is not intended to be onerous” … , and that the initial burden is met when ” the totality of the relevant facts gives rise to an inference of discriminatory purpose’ ” … . Here, defendant is African-American, and the first prospective juror to be peremptorily challenged by the People was the only African-American on the panel. Neither the People nor defendant asked any questions of the prospective juror at issue during voir dire, and County Court’s general questioning of the panel raised no issues that would distinguish her from the other prospective jurors. Inasmuch as there is a basis in the record to infer that the People exercised the peremptory challenge in a discriminatory manner, the burden shifted to the People to articulate a nondiscriminatory reason for striking the juror, and the court then should have determined whether the proffered reason was pretextual … . We therefore hold the case, reserve decision, and remit the matter to County Court for that purpose … . People v Davis, 2017 NY Slip Op 06790, Fourth Dept 9-29-17

CRIMINAL LAW (DEFENDANT SUFFICIENTLY RAISED THE FIRST STEP OF A BATSON CHALLENGE TO A PEREMPTORY CHALLENGE EXERCISED BY THE PEOPLE, BUT THE NEXT STEPS IN THE BATSON PROCEDURE WERE NOT TAKEN, ALTHOUGH DEFENDANT WAS CONVICTED AFTER A JURY TRIAL, THE MATTER WAS REMITTED TO COMPLETE THE BATSON PROCEDURE (FOURTH DEPT))/JURORS (CRIMINAL LAW, DEFENDANT SUFFICIENTLY RAISED THE FIRST STEP OF A BATSON CHALLENGE TO A PEREMPTORY CHALLENGE EXERCISED BY THE PEOPLE, BUT THE NEXT STEPS IN THE BATSON PROCEDURE WERE NOT TAKEN, ALTHOUGH DEFENDANT WAS CONVICTED AFTER A JURY TRIAL, THE MATTER WAS REMITTED TO COMPLETE THE BATSON PROCEDURE (FOURTH DEPT))/BATSON PROCEDURE (JURORS, DEFENDANT SUFFICIENTLY RAISED THE FIRST STEP OF A BATSON CHALLENGE TO A PEREMPTORY CHALLENGE EXERCISED BY THE PEOPLE, BUT THE NEXT STEPS IN THE BATSON PROCEDURE WERE NOT TAKEN, ALTHOUGH DEFENDANT WAS CONVICTED AFTER A JURY TRIAL, THE MATTER WAS REMITTED TO COMPLETE THE BATSON PROCEDURE (FOURTH DEPT))

September 29, 2017

Search Results

EXCESSIVE INTERVENTION IN THE QUESTIONING OF DEFENDANT AND WITNESSES BY THE TRIAL JUDGE REQUIRED A NEW TRIAL, DEFENDANT SHOULD NOT HAVE BEEN QUESTIONED ABOUT HIS BEING INCARCERATED DURING THE TRIAL (SECOND DEPT).

HOT PURSUIT JUSTIFIED WARRANTLESS ARREST IN DEFENDANT’S HOME (SECOND DEPT).

AFFIDAVIT WAS SUFFICIENT TO DEMONSTRATE PLAINTIFF BANK’S ENTITLEMENT TO SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION UNDER THE CONTROLLING ADMINISTRATIVE ORDER AND THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (FIRST DEPT).

TRAFFIC CONCERNS JUSTIFIED THE ZONING BOARD’S RESTRICTIONS ON A RESTAURANT’S HOURS OF OPERATION AND REQUIREMENT FOR VALET PARKING (FOURTH DEPT).

DOCTRINE OF TAX ESTOPPEL PREVENTED DEFENDANTS FROM ASSERTING FACTS ABOUT THE SALE OF PROPERTY CONTRARY TO THE INFORMATION IN THE REAL PROPERTY TRANSFER REPORT, PLAINTIFF’S ACTION TO ENFORCE A RIGHT OF FIRST REFUSAL SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

WATER ON THE BATHROOM FLOOR NEAR THE SHOWER WAS NECESSARILY INCIDENTAL TO THE USE OF THE SHOWER AND WAS NOT AN ACTIONABLE CONDITION IN THIS SLIP AND FALL CASE (FOURTH DEPT).

STIPULATION WHICH WAS NOT MERGED INTO THE JUDGMENT OF DIVORCE SHOULD NOT HAVE BEEN DISMISSED AS UNENFORCEABLE (FOURTH DEPT).

EVIDENCE DID NOT SUPPORT FINDING THAT RESPONDENT WAS LEGALLY RESPONSIBLE FOR THE CHILD, NEGLECT DETERMINATION CANNOT STAND (FOURTH DEPT).

WAIVER OF FOURTH AMENDMENT RIGHTS AS CONDITION OF PROBATION INVALID, DENIAL OF YOUTHFUL OFFENDER STATUS ENCOMPASSED BY WAIVER OF APPEAL (FOURTH DEPT).

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