You are here: / NO PROOF INMATE WAS PROPERLY INFORMED OF THE CONSEQUENCES OF HIS NOT ATTENDING...

Search Results

/

NO PROOF INMATE WAS PROPERLY INFORMED OF THE CONSEQUENCES OF HIS NOT ATTENDING THE HEARING AT THE TIME OF HIS PURPORTED REFUSAL TO ATTEND, DETERMINATION ANNULLED.

The Third Department annulled the determination because there was no proof the proper information was provided to the inmate at the time the inmate purported refused to attend the hearing:

… [T]he only indication in the record that petitioner refused to attend the hearing is the form signed by the Hearing Officer and an employee witness attesting that petitioner refused to attend the hearing. Although the form includes instructions to inform an inmate about the nature of the hearing, the charges against him or her and the fact that the hearing will be conducted in the refusing inmate’s absence, the record reflects no information regarding the steps taken to ascertain the legitimacy of petitioner’s refusal or to inform him of his right to attend the hearing and the consequences of his failure to do so … . Matter of Wilson v Annucci, 2017 NY Slip Op 01617, 3rd Dept 3-2-17

DISCIPLINARY HEARINGS (INMATES) (NO PROOF INMATE WAS PROPERLY INFORMED OF THE CONSEQUENCES OF HIS NOT ATTENDING THE HEARING AT THE TIME OF HIS PURPORTED REFUSAL TO ATTEND, DETERMINATION ANNULLED)

/ ,

ANOMALY IN GUIDELINES MAY RESULT IN AN OVERESTIMATION OF THE CHILD-PORNOGRAPHY-BASED RISK, CASE REMITTED FOR FINDINGS.

The Third Department noted an acknowledged anomaly in the risk assessment guidelines for child pornography that may result in the overestimation of the risk. Because the SORA court did not make any findings about the possible overestimation, the case was remitted:

The Court of Appeals has found that an anomaly exists in assessing points to child pornography offenders under risk factor 7 in the RAI, in that the absence of a previous relationship between the offender and children pictured in pornographic images may not normally heighten the risk that the offender presents to the community, whereas a situation in which “the offender and the children are acquainted would seem to present a greater threat to the community, not a lesser one” … . The Court further concluded that such an anomaly may result in an overestimation of a child pornography offender’s risk of reoffense and danger to the public … . While the Court concluded that, despite the anomaly, the plain language of the guidelines of the Board of Examiners of Sex Offenders authorizes the assessment of points against child pornography offenders under risk factor 7, it further stated that, “in deciding a child pornography offender’s application for a downward departure, a [Sex Offender Registration Act] court should, in the exercise of its discretion, give particularly strong consideration to the possibility that adjudicating the offender in accordance with the guidelines point score and without departing downward might lead to an excessive level of registration” … .

In denying the request for a downward departure, County Court found that points were properly assessed under risk factor 7, but did not take into consideration the potential overestimation of defendant’s risk of reoffense and the danger to the public created by the assessment of those points. Accordingly, the matter must be remitted for the court to determine whether such an overestimation was created and whether a downward departure is therefore warranted … . People v Kemp, 2017 NY Slip Op 01618, 3rd Dept 3-2-17

 

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT, ANOMALY IN GUIDELINES MAY RESULT IN AN OVERESTIMATION OF THE CHILD-PORNOGRAPHY-BASED RISK, CASE REMITTED FOR FINDINGS)/SEX OFFENDER REGISTRATION ACT (SORA) (ANOMALY IN GUIDELINES MAY RESULT IN AN OVERESTIMATION OF THE CHILD-PORNOGRAPHY-BASED RISK, CASE REMITTED FOR FINDINGS)/CHILD PORNOGRAPHY (SEX OFFENDER REGISTRATION ACT, ANOMALY IN GUIDELINES MAY RESULT IN AN OVERESTIMATION OF THE CHILD-PORNOGRAPHY-BASED RISK, CASE REMITTED FOR FINDINGS)/

/

PURPORTED WAIVER OF JURY TRIAL NOT VALID, NOTHING ON THE RECORD.

The Second Department determined the sex offender did not validly waive his right to a jury trial. Although there was evidence he intended to waive a jury trial (emails) there was no on-the-record waiver:

The State moves to enlarge the record on appeal to include emails from the appellant’s trial counsel which, the State contends, demonstrate that the appellant validly waived his right to a jury trial. However, in Matter of State of New York v Ted B. (132 AD3d 28), we held that a respondent in a Mental Hygiene article 10 proceeding may validly waive the right to a jury trial only where an on-the-record colloquy shows that the respondent made a knowing and voluntary waiver of such right, after an opportunity for consultation with his or her attorney. As an alternative to a personal appearance in court, a respondent may participate in such a colloquy via video conferencing  … . While the State urges us to find a valid waiver based on emails from the appellant’s trial counsel, such off-the-record communications, regardless of content, are insufficient to ensure that a respondent’s decision to “forgo his [or her] state constitutional and statutory right to a jury trial is the product of an informed and intelligent judgment and, thereby, protect the important liberty interests at stake in article 10 proceedings'” … . Matter of State of New York v Jesus M., 2017 NY Slip Op 01557, 2nd Dept 3-1-17

MENTAL HYGIENE LAW (PURPORTED WAIVER OF JURY TRIAL NOT VALID, NOTHING ON THE RECORD)/JURY TRIAL (MENTAL HYGIENE LAW, PURPORTED WAIVER OF JURY TRIAL NOT VALID, NOTHING ON THE RECORD)

/

EVEN AN INNOCENT MATERIAL MISTAKE ON AN INSURANCE APPLICATION RENDERS THE POLICY UNENFORCEABLE.

The Second Department determined the trial court property granted the insurer’s motion for a judgment as a matter of law. The insured acknowledged that the property was configured as a three-family home, but that he indicated it was a two-family home on the application for insurance. Even an innocent material misrepresentation renders the policy unenforceable:

In order to establish the right to rescind an insurance policy, an insurer must show that its insured made a material misrepresentation of fact when he or she secured the policy … . A misrepresentation is material if the insurer would not have issued the policy had it known the facts misrepresented … .

Here, the plaintiff’s own testimony established that his house was structurally configured as a three-family dwelling, and thus, the statement on his insurance application indicating that it was a two-family dwelling was a misrepresentation … . Although the plaintiff testified that he believed his house was a legal two-family dwelling, an insurer may rescind a policy if the insured made a material misrepresentation of fact even if the misrepresentation was innocently or unintentionally made … . Further, the defendant established that the plaintiff’s misrepresentation was material through the uncontroverted testimony of its witnesses and documentary evidence, including its underwriting guidelines, which established that the defendant did not insure three-family dwellings, and would not have issued the subject policy if the plaintiff and his wife had disclosed that the house contained three dwelling units … . Estate of Gen Yee Chu v Otsego Mut. Fire Ins. Co., 2017 NY Slip Op 01536, 2nd Dept 3-1-17

 

INSURANCE LAW (EVEN AN INNOCENT MATERIAL MISTAKE ON AN INSURANCE APPLICATION RENDERS THE POLICY UNENFORCEABLE)/MISREPRESENTATION (INSURANCE LAW, EVEN AN INNOCENT MATERIAL MISTAKE ON AN INSURANCE APPLICATION RENDERS THE POLICY UNENFORCEABLE)

/ ,

LENDER DID NOT NEGOTIATE A MORTGAGE MODIFICATION IN GOOD FAITH AND WAS PROPERLY SANCTIONED.

The Second Department determined plaintiff-lender did not negotiate a mortgage modification in good faith and was properly sanctioned by the tolling of interest, costs and attorney’s fees accrued during the four years of negotiations:

Pursuant to CPLR 3408(f), the parties at a mandatory foreclosure settlement conference are required to negotiate in good faith to reach a mutually agreeable resolution … . “The purpose of the good faith requirement . . . is to ensure that both plaintiff and defendant are prepared to participate in a meaningful effort at the settlement conference to reach resolution” … . Compliance with the good faith requirement is measured by the totality of the circumstances and whether the party’s conduct demonstrates a meaningful effort at reaching a resolution … .

Here, the totality of the circumstances supports the finding that the plaintiff failed to negotiate in good faith. The hearing evidence demonstrated that the plaintiff, among other things, engaged in dilatory conduct by making piecemeal document requests, providing contradictory information, and repeatedly requesting documents that had already been provided … . Aurora Loan Servs., LLC v Diakite, 2017 NY Slip Op 01528, 2nd Dept 3-1-17

 

FORECLOSURE (LENDER DID NOT NEGOTIATE A MORTGAGE MODIFICATION IN GOOD FAITH AND WAS PROPERLY SANCTION)/CIVIL PROCEDURE (FORECLOSURE, LENDER DID NOT NEGOTIATE A MORTGAGE MODIFICATION IN GOOD FAITH AND WAS PROPERLY SANCTION)

/ , ,

INSUFFICIENT INQUIRY INTO SEX OFFENDER’S REQUEST TO REPRESENT HIMSELF.

The Second Department determined the judge did not make a sufficient inquiry before allowing the sex offender to represent himself in this SORA proceeding:

Where a defendant makes a timely and unequivocal request to waive the right to counsel and represent herself or himself, “the trial court is obligated to conduct a searching inquiry’ to ensure that the defendant’s waiver is knowing, intelligent, and voluntary” … . “A waiver is voluntarily made when the trial court advises the defendant and can be certain that the dangers and disadvantages of giving up the fundamental right to counsel have been impressed upon the defendant'” … . “A searching inquiry’ does not have to be made in a formulaic manner, . . . although it is better practice to ask the defendant about [her or] his age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver'” … . …

… [W]e conclude that the Supreme Court failed to conduct the requisite searching inquiry to ensure that the defendant’s waiver of the right to counsel was unequivocal, voluntary, and intelligent … . The court made only minimal inquiry into the defendant’s age, experience, intelligence, education, and exposure to the legal system, and did not explain the risk inherent in proceeding pro se or the advantages of representation by counsel. The court’s failure to conduct a searching inquiry renders the defendant’s waiver of the right to counsel invalid and requires reversal … . People v Griffin, 2017 NY Slip Op 01577, 2nd Dept 3-1-17

 

CRIMINAL LAW (SEX OFFENDER REGISTRATION ACT, INSUFFICIENT INQUIRY INTO SEX OFFENDER’S REQUEST TO REPRESENT HIMSELF)/SEX OFFENDER REGISTRATION ACT (SORA) (INSUFFICIENT INQUIRY INTO SEX OFFENDER’S REQUEST TO REPRESENT HIMSELF)/ATTORNEYS (SEX OFFENDER REGISTRATION ACT, INSUFFICIENT INQUIRY INTO SEX OFFENDER’S REQUEST TO REPRESENT HIMSELF)/

/ , ,

A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM.

The Second Department, in a full-fledged opinion by Justice Leventhal, reversing County Court, determined a conviction by guilty plea can be challenged on actual innocence grounds. The defendant was entitled to a hearing on her motion to set aside her conviction both on her actual innocence claim and her ineffective assistance of counsel claim. Defendant was a nurse who bathed a profoundly disabled child. After the bath blisters appeared on the child’s skin. At the time she stated she didn’t think the water was hot. In her motion to set aside, she alleged that she was convinced during interrogation that the water must have been too hot and pled guilty for that reason. Expert evidence indicates the blisters may not have been burns, but rather were a reaction to antibiotics. A biopsy was consistent with an allergic reaction:

Having determined that a defendant’s plea of guilty does not absolutely bar that defendant from maintaining a freestanding actual innocence claim pursuant to CPL 440.10(1)(h), we address whether the County Court properly denied, without a hearing, that branch of the defendant’s motion which was to vacate the judgment based on actual innocence. Contrary to the People’s contention, the defendant is entitled to a hearing on her actual innocence claim. “A prima facie showing of actual innocence is made out when there is “a sufficient showing of possible merit to warrant a fuller exploration”‘ by the court” … . Here, by submitting her affidavit, [defendant’s expert’s] affirmation, and other material, such as the skin biopsy pathology report, the defendant made the requisite prima facie showing … . We also note that subsequent to the entry of the defendant’s plea of guilty, the civil action against the defendant and her former employer resulted in a jury verdict in their favor. We are mindful that the burden of proof in a civil trial is different than that in a criminal trial and that the evidence presented at each may differ. However, in the civil trial, the jury found that the defendant’s care was not a proximate cause of the child’s injuries, despite the fact that the defendant and her former employer were collaterally estopped from contesting liability. People v Tiger, 2017 NY Slip Op 01575, 2nd Dept 3-1-17

CRIMINAL LAW (A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/EVIDENCE (CRIMINAL LAW, MOTION TO SET ASIDE CONVICTION, A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/SET ASIDE CONVICTION, MOTION TO (A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/ATTORNEYS (CRIMINAL LAW, A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/INEFFECTIVE ASSISTANCE (A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)/ACTUAL INNOCENCE (CRIMINAL LAW, A CONVICTION BY GUILTY PLEA MAY BE SET ASIDE ON ACTUAL INNOCENCE GROUNDS, DEFENDANT ENTITLED TO A HEARING ON HER ACTUAL INNOCENCE CLAIM AND ON HER INEFFECTIVE ASSISTANCE CLAIM)

/ ,

EVIDENCE OF KNOWING POSSESSION OF A CONTROLLED SUBSTANCE WAS SUFFICIENT TO SUPPORT AN INDICTMENT, SUPREME COURT REVERSED.

The Second Department, reversing Supreme Court, determined the evidence before the grand jury was sufficient to demonstrate defendant’s knowledge he possessed cocaine. The defendant received a package containing cocaine addressed to a name (not his name) he used to sign for it and the package was addressed to a location which was not where defendant resided. The defendant was arrested before the package was opened:

“Courts assessing the sufficiency of the evidence before a grand jury must evaluate whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted—and deferring all questions as to the weight or quality of the evidence—would warrant conviction” … . ” Legally sufficient evidence’ means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof” … . ” In the context of a Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt'” … . “The reviewing court’s inquiry is limited to whether the facts, if proven, and the inferences that logically flow from those facts, supply proof of every element of the charged crimes, and whether the Grand Jury could rationally have drawn the guilty inference. That other, innocent inferences could possibly be drawn from those facts is irrelevant to the sufficiency inquiry as long as the Grand Jury could rationally have drawn the guilty inference” … . People v Jimenez, 2017 NY Slip Op 01566, 2nd Dept 3-1-17

CRIMINAL LAW(EVIDENCE OF KNOWING POSSESSION OF A CONTROLLED SUBSTANCE WAS SUFFICIENT TO SUPPORT AN INDICTMENT, SUPREME COURT REVERSED)/EVIDENCE (CRIMINAL LAW, EVIDENCE OF KNOWING POSSESSION OF A CONTROLLED SUBSTANCE WAS SUFFICIENT TO SUPPORT AN INDICTMENT, SUPREME COURT REVERSED)/GRAND JURIES (EVIDENCE OF KNOWING POSSESSION OF A CONTROLLED SUBSTANCE WAS SUFFICIENT TO SUPPORT AN INDICTMENT, SUPREME COURT REVERSED)/CONTROLLED SUBSTANCE, POSSESSION OF (EVIDENCE OF KNOWING POSSESSION OF A CONTROLLED SUBSTANCE WAS SUFFICIENT TO SUPPORT AN INDICTMENT, SUPREME COURT REVERSED)

/ ,

UNWARNED STATEMENT PRECEDED MIRANDIZED STATEMENT BY TEN MINUTES, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.

The Second Department determined defendant’s motion to suppress his statements should have been granted:

At the suppression hearing, a police detective testified that while the defendant was in custody, he administered Miranda warnings … and took the defendant’s written statement. On cross-examination, the detective admitted that 10 minutes prior to taking the defendant’s Mirandized written statement, he questioned the defendant without administering Miranda warnings. The written statement itself refers to incriminating statements made by the defendant during the earlier, pre-Miranda questioning. The Supreme Court denied suppression.

“[W]here an improper, unwarned statement gives rise to a subsequent Mirandized statement as part of a single continuous chain of events,’ there is inadequate assurance that the Miranda warnings were effective in protecting a defendant’s rights, and the warned statement must also be suppressed” … . Here, the improper unwarned statements made by the defendant gave rise to a subsequent Mirandized written statement as part of a single continuous chain of events. Accordingly, both the oral statement and the written statement should have been suppressed. People v Ghee, 2017 NY Slip Op 01564, 2nd Dept 3-1-17

 

CRIMINAL LAW (UNWARNED STATEMENT PRECEDED MIRANDIZED STATEMENT BY TEN MINUTES, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED)/EVIDENCE (CRIMINAL LAW, UNWARNED STATEMENT PRECEDED MIRANDIZED STATEMENT BY TEN MINUTES, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED)/SUPPRESS, MOTION TO (CRIMINAL LAW, STATEMENTS, UNWARNED STATEMENT PRECEDED MIRANDIZED STATEMENT BY TEN MINUTES, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED)/STATEMENTS (CRIMINAL LAW, SUPPRESSION, UNWARNED STATEMENT PRECEDED MIRANDIZED STATEMENT BY TEN MINUTES, MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED)

/ ,

PLAINTIFF’S VERDICT IN THIS ASBESTOS CASE PROPERLY SET ASIDE, INSUFFICIENT PROOF PLAINTIFF WAS EXPOSED TO DANGEROUS LEVELS OF ASBESTOS EMANATING FROM DEFENDANT’S PRODUCTS.

 

The First Department, in a full-fledged opinion by Justice Saxe, over a two-justice dissenting opinion, determined the plaintiff’s verdict in this asbestos/mesothelioma case was properly set aside by the trial court. The First Department held the plaintiff’s experts did not present sufficient proof plaintiff’s decedent was exposed to dangerous levels of asbestos emanating from defendant’s products while working as an auto mechanic:

… [T]he fact that asbestos, or chrysotile, has been linked to mesothelioma, is not enough for a determination of liability against a particular defendant; a causation expert must still establish that the plaintiff was exposed to sufficient levels of the toxin from the defendant’s products to have caused his disease … . Even if it is not possible to quantify a plaintiff’s exposure, causation from exposure to toxins in a defendant’s product must be established through some scientific method, such as mathematical modeling based on a plaintiff’s work history, or comparing the plaintiff’s exposure with that of subjects of reported studies … .

The evidence presented by plaintiff here was insufficient because it failed to establish that the decedent’s mesothelioma was a result of his exposure to a sufficient quantity of asbestos in friction products sold or distributed by defendant Ford Motor Company. Plaintiff’s experts effectively testified only in terms of an increased risk and association between asbestos and mesothelioma … , but failed to either quantify the decedent’s exposure levels or otherwise provide any scientific expression of his exposure level with respect to Ford’s products … . Matter of New York City Asbestos Litig., 2017 NY Slip Op 01523, 1st Dept 2-28-17

PRODUCTS LIABILITY (PLAINTIFF’S VERDICT IN THIS ASBESTOS CASE PROPERLY SET ASIDE, INSUFFICIENT PROOF PLAINTIFF WAS EXPOSED TO DANGEROUS LEVELS OF ASBESTOS FROM DEFENDANT’S PRODUCTS)/TOXIC TORTS (ASBESTOS, PLAINTIFF’S VERDICT IN THIS ASBESTOS CASE PROPERLY SET ASIDE, INSUFFICIENT PROOF PLAINTIFF WAS EXPOSED TO DANGEROUS LEVELS OF ASBESTOS FROM DEFENDANT’S PRODUCTS)/ASBESTOS (PLAINTIFF’S VERDICT IN THIS ASBESTOS CASE PROPERLY SET ASIDE, INSUFFICIENT PROOF PLAINTIFF WAS EXPOSED TO DANGEROUS LEVELS OF ASBESTOS FROM DEFENDANT’S PRODUCTS)/EXPERT OPINION (PLAINTIFF’S VERDICT IN THIS ASBESTOS CASE PROPERLY SET ASIDE, INSUFFICIENT PROOF PLAINTIFF WAS EXPOSED TO DANGEROUS LEVELS OF ASBESTOS FROM DEFENDANT’S PRODUCTS)

Categories

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

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy