You are here: / TRIAL JUDGE PRESSURED DEFENDANT INTO PROVIDING A DNA SAMPLE AFTER DEFENSE...

Search Results

/ ,

TRIAL JUDGE PRESSURED DEFENDANT INTO PROVIDING A DNA SAMPLE AFTER DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL AT A CRITICAL STAGE, GUILTY PLEAS VACATED AND INDICTMENT DISMISSED.

The First Department, in a full-fledged opinion by Justice Manzanet-Daniels, over a two-justice dissenting opinion, determined defendant was deprived of his right to counsel when, after his attorney had been relieved, the judge pressured defendant into providing a DNA sample. The People’s request for a DNA sample came long after the discovery deadline had passed. The defendant ultimately pled guilty to manslaughter and burglary. The First Department vacated the guilty pleas and dismissed the indictment:

The court rejected defendant’s repeated pleas for a lawyer, pressured him into submitting to the DNA test, and incorrectly advised him that he had no argument against the prosecutor’s untimely discovery. The denial of defendant’s repeated entreaties to consult with a lawyer during this critical stage of the proceedings violated his Sixth Amendment rights. The deprivation of his Sixth Amendment rights is of constitutional dimension and is not subject to a harmless error analysis … . The appropriate remedy under the circumstances is to vacate both pleas, and to dismiss the indictment … . People v Smith, 2016 NY Slip Op 05902, 1st Dept 8-25-16

CRIMINAL LAW (TRIAL JUDGE PRESSURED DEFENDANT INTO PROVIDING A DNA SAMPLE AFTER DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL AT A CRITICAL STAGE, GUILTY PLEAS VACATED AND INDICTMENT DISMISSED)/RIGHT TO COUNSEL (TRIAL JUDGE PRESSURED DEFENDANT INTO PROVIDING A DNA SAMPLE AFTER DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL AT A CRITICAL STAGE, GUILTY PLEAS VACATED AND INDICTMENT DISMISSED)/DNA SAMPLE (TRIAL JUDGE PRESSURED DEFENDANT INTO PROVIDING A DNA SAMPLE AFTER DEFENSE COUNSEL HAD BEEN RELIEVED, DEFENDANT WAS DEPRIVED OF HIS RIGHT TO COUNSEL AT A CRITICAL STAGE, GUILTY PLEAS VACATED AND INDICTMENT DISMISSED)

/ ,

QUESTION OF FACT WHETHER EMPLOYER VICARIOUSLY LIABLE FOR NEGLIGENCE OF AN INDEPENDENT CONTRACTOR.

The Second Department determined there was a question of fact whether the employer, Vertical, could be held vicariously liable for the actions of an independent contractor, On Guard. On Guard provided security for a parking lot owned by Vertical. Plaintiff was injured when struck by a remote-controlled toy car which was apparently being operated in the parking lot with a security guard’s knowledge:

“Generally, a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor’s negligent acts'” … . “One of the exceptions to this general rule is the nondelegable duty exception, which is applicable where the party is under a duty to keep premises safe'” … . In such instances, the party ” is vicariously liable for the fault of the independent contractor because a legal duty is imposed on it which cannot be delegated'” … .

Here, the evidence submitted by the moving defendants raised triable issues of fact regarding whether On Guard was negligent in performing its security duties, and whether the moving defendants were vicariously liable for On Guard’s negligence based on their nondelegable duty to keep the premises safe… . Pesante v Vertical Indus. Dev. Corp., 2016 NY Slip Op 05854, 2nd Dept 8-24-16

 

NEGLIGENCE (QUESTION OF FACT WHETHER EMPLOYER VICARIOUSLY LIABLE FOR NEGLIGENCE OF AN INDEPENDENT CONTRACTOR)/EMPLOYMENT LAW (QUESTION OF FACT WHETHER EMPLOYER VICARIOUSLY LIABLE FOR NEGLIGENCE OF AN INDEPENDENT CONTRACTOR)/INDEPENDENT CONTRACTORS (QUESTION OF FACT WHETHER EMPLOYER VICARIOUSLY LIABLE FOR NEGLIGENCE OF AN INDEPENDENT CONTRACTOR)

/

NON-PROFIT RETREAT ENTITLED TO REAL PROPERTY TAX EXEMPTION FOR ENTIRE PROPERTY, NOT JUST THE DEVELOPED PORTION.

The Second Department, reversing Supreme Court, determined the owner of a retreat (Greentree, a non-profit) )was entitled to a real property tax exemption for the entirety of the property, not just the developed portion:

On this appeal, the record supports the conclusion that Greentree is organized exclusively for an exempt purpose within the meaning of RPTL 420-a(1)(a), and that its conference center was used for that exempt purpose during the tax year 2013/2014 … . Indeed, the Assessors do not dispute this conclusion. Rather, the Assessors contend that undeveloped portions of the property are not integral to the use of the structures on the property as a retreat and conference center, and thus, the entire subject property is not “used exclusively” for carrying out Greentree’s exempt purpose as required by RPTL 420-a(1)(a).

The term “exclusively,” in the context of RPTL 420-a, “is not to be read literally” … , and “has been broadly defined to connote principal or primary such that purposes and uses merely auxiliary or incidental to the main and exempt purpose and use will not defeat the exemption” … . “Thus, whether property is used exclusively’ for purposes of section 420-a is dependent upon whether the primary use’ of the property is in furtherance of permitted purposes” … .

Here, Greentree demonstrated that the entire property should be considered as a single unit and that it is used exclusively for tax exempt purposes. More specifically, Greentree offered proof that the undeveloped area is an integral part of the property, regardless of the frequency of use, because it served to preserve the character of the remaining property and, thus, is entitled to exemption … . Matter of Greentree Found. v Assessor & Bd. of Assessors of County of Nassau, 2016 NY Slip Op 05861, 2nd Dept 8-24-16

 

REAL PROPERTY TAX LAW (NON-PROFIT RETREAT ENTITLED TO REAL PROPERTY TAX EXEMPTION FOR ENTIRE PROPERTY, NOT JUST THE DEVELOPED PORTION)/TAX EXEMPTION (REAL PROPERTY, NON-PROFIT RETREAT ENTITLED TO REAL PROPERTY TAX EXEMPTION FOR ENTIRE PROPERTY, NOT JUST THE DEVELOPED PORTION)

/

REFEREE’S ALLEGED VIOLATION OF A LOCAL COURT RULE DID NOT WARRANT SETTING ASIDE THE FORECLOSURE SALE.

The Second Department, reversing Supreme Court, determined the referee’s alleged setting of an “upset price” which violated Kings County Supreme Court Civil Term Rules did not warrant setting aside the foreclosure sale:

RPAPL 231 provides, in relevant part, that a court, within one year after a foreclosure sale, “may set the sale aside for failure to comply with the provisions of this section as to the notice, time or manner of such sale if a substantial right of a party was prejudiced by the defect” (RPAPL 231[6]). ” In the exercise of its equitable powers, a court has the discretion to set aside a foreclosure sale where there is evidence of fraud, collusion, mistake, or misconduct'” … . In order to provide a basis for setting aside a sale, the evidence of fraud, collusion, mistake, or misconduct must cast suspicion on the fairness of the sale … . Furthermore, evidence of a unilateral mistake at the foreclosure sale, without more, does not provide a basis to invalidate a sale that was otherwise lawfully conducted … , and belated and unsubstantiated claims are insufficient to establish the existence of fraud, collusion, mistake, or misconduct … . Moreover, mere irregularities by a referee may be disregarded if they do not affect a substantial right of a party … . Clinton Hill Holding 1, LLC v Kathy & Tania, Inc., 2016 NY Slip Op 05844, 1st Dept 8-24-16

FORECLOSURE (REFEREE’S ALLEGED VIOLATION OF A LOCAL COURT RULE DID NOT WARRANT SETTING ASIDE THE FORECLOSURE SALE)

/ ,

MAINTENANCE PORTION OF POSTNUPTIAL AGREEMENT UNCONSCIONABLE.

The Second Department, in an extensive decision covering several marital/separate property and equitable distribution issues not summarized here, determined the maintenance portion of a 1988 postnuptial agreement was unconscionable and therefore unenforceable:

Here, the Supreme Court properly determined that the maintenance provision of the 1988 postnuptial agreement, which provided the plaintiff with only $50,000 in full satisfaction of all claims, would be unconscionable by the time a final judgment would be entered in this action. At the time that the parties executed the 1988 postnuptial agreement, the defendant owned, among other things, a jewelry business worth at least $3 million, and he was in contract to buy a shopping center. Thereafter, during more than 25 years of marriage, the defendant’s jewelry business underwent tremendous growth while the plaintiff worked there, and the parties lived what can easily be described as a lavish lifestyle. Among other things, they owned numerous high-end automobiles and took numerous international vacations. For a time, they traveled regularly to the Bahamas on the defendant’s yacht. Under all the circumstances, the court properly determined that the maintenance provision in the 1988 agreement was unconscionable and, thus, unenforceable … . Maddaloni v Maddaloni, 2016 NY Slip Op 05851, 2nd Dept 8-24-16

FAMILY LAW (MAINTENANCE PORTION OF POSTNUPTIAL AGREEMENT UNCONSCIONABLE)/CONTRACT LAW (MAINTENANCE PORTION OF POSTNUPTIAL AGREEMENT UNCONSIONABLE)/UNCONSCIONABLE CONTRACT (MAINTENANCE PORTION OF POSTNUPTIAL AGREEMENT UNCONSCIONABLE)

/ ,

COURT MUST DETERMINE VALUE OF MARITAL PROPERTY, DESPITE PAUCITY OF SUBMITTED EVIDENCE, BEFORE DISTRIBUTING IT.

The Second Department determined the trial judge should have determined the value of the marital residence before awarding sole title to plaintiff:

We remit the matter for a new trial on the issue of equitable distribution of marital property. Although the parties came forward with a paucity of evidence regarding the value of the marital residence, the Supreme Court was nevertheless required to determine the value of the property before awarding sole title to the plaintiff. “A determination must be made as to the net value of each asset before determining the distribution thereof” … . In circumstances where proof of value is insufficient to make a determination, the court has discretion to, among other things, appoint a neutral appraiser and to direct that such appraiser be paid by one or both parties … . Further, the court erred in failing to value and equitably distribute the defendant’s investment in a rental property located in North Carolina and the parties’ remaining interest in property located in Costa Rica. Van Dood v Van Dood, 2016 NY Slip Op 05858, 2nd Dept 8-24-16

FAMILY LAW (COURT MUST DETERMINE VALUE OF MARITAL PROPERTY, DESPITE PAUCITY OF SUBMITTED EVIDENCE, BEFORE DISTRIBUTING IT)/EVIDENCE (FAMILY LAW, COURT MUST DETERMINE VALUE OF MARITAL PROPERTY, DESPITE PAUCITY OF SUBMITTED EVIDENCE, BEFORE DISTRIBUTING IT)/MARITAL PROPERTY (COURT MUST DETERMINE VALUE OF MARITAL PROPERTY, DESPITE PAUCITY OF SUBMITTED EVIDENCE, BEFORE DISTRIBUTING IT)/EQUITABLE DISTRIBUTION (COURT MUST DETERMINE VALUE OF MARITAL PROPERTY, DESPITE PAUCITY OF SUBMITTED EVIDENCE, BEFORE DISTRIBUTING IT)

/ ,

CRIMINAL PROCEDURE LAW 440.30 (1-a) DOES NOT ALLOW A POST-TRIAL CHALLENGE TO DNA EVIDENCE ADMITTED AT TRIAL.

The Second Department determined Criminal Procedure Law 440.30 (1-a) did not authorize defendant to challenge, in a post-trial motion, DNA evidence which was introduced at trial. The statute deals only with post-trial DNA testing:

CPL 440.30 (1-a) (a) (1) provides that a defendant may bring a postconviction motion requesting forensic DNA testing of “specified evidence.” The statute further provides that “the court shall grant the application for forensic DNA testing of such evidence upon its determination that if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant” (CPL 440.30 [1-a] [a] [1]). As the Court of Appeals has recognized, CPL 440.30 (1-a) was enacted to establish a new procedure for defendants to secure DNA testing of specified evidence … ..

Defendant here has not requested DNA testing of any evidence, and instead seeks to have expert testimony adduced for the purpose of challenging the accuracy of scientific evidence that was actually presented at trial. Inasmuch as CPL 440.30 (1-a) does not address requests for expert testimony, the provision is inapplicable to defendant’s request. People v Ramos, 2016 NY Slip Op 05885, 3rd Dept 8-25-16

CRIMINAL LAW (CRIMINAL PROCEDURE LAW 440.30 (1-a) DOES NOT ALLOW A POST-TRIAL CHALLENGE TO DNA EVIDENCE ADMITTED AT TRIAL)/EVIDENCE (CRIMINAL PROCEDURE LAW 440.30 (1-a) DOES NOT ALLOW A POST-TRIAL CHALLENGE TO DNA EVIDENCE ADMITTED AT TRIAL)/DNA (CRIMINAL PROCEDURE LAW 440.30 (1-a) DOES NOT ALLOW A POST-TRIAL CHALLENGE TO DNA EVIDENCE ADMITTED AT TRIAL)

/ ,

JUDGE FAILED TO GIVE COUNSEL MEANINGFUL NOTICE OF THE CONTENTS OF A JURY NOTE, CONVICTION REVERSED.

The Second Department, reversing defendant’s conviction, determined the trial judge’s response to a jury note did not comply with Criminal Procedure Law 310.30. The note requested that the court “define clearly acting in concert:”

Here, the jury note requested, among other things, that the Supreme Court “define clearly acting in concert.'” The court did not show the note to the attorneys or read it into the record before formulating a response. In apprising counsel of the contents of that note, the court omitted the words “define clearly” and stated only, “They want acting in concert. I will read that back.” After the jury returned to the courtroom, the court again mischaracterized the note, stating: “[I]t says define acting in concert. Okay, I am going to read my acting in concert and I will read it slow for you.” The court then reread its instructions on acting in concert.

The jury’s request to “define clearly” was not a request for a “mere ministerial readback” of the Supreme Court’s charge … . Meaningful notice of a jury’s note “means notice of the actual specific content of the jurors’ request. Manifestly, counsel cannot participate effectively or adequately protect the defendant’s rights if this specific information is not given” … . The court’s failure to provide counsel with meaningful notice of a substantive jury note was a mode of proceedings error … , which requires reversal of the judgment and a new trial … . People v Gough, 2016 NY Slip Op 05873, 2nd Dept 8-24-16

 

CRIMINAL LAW (JUDGE FAILED TO GIVE COUNSEL MEANINGFUL NOTICE OF THE CONTENTS OF A JURY NOTE, CONVICTION REVERSED)/JURY NOTES (CRIMINAL LAW, JUDGE FAILED TO GIVE COUNSEL MEANINGFUL NOTICE OF THE CONTENTS OF A JURY NOTE, CONVICTION REVERSED)

/

DOCTRINE OF MUTUAL MISTAKE APPLIED TO REFORM NOTE AND MORTGAGE.

The Second Department determined the doctrine of mutual mistake applied and Supreme Court properly reformed the note and mortgage to correct the mistake:

“A party seeking reformation of a contract by reason of mistake must establish, with clear and convincing evidence, that the contract was executed under mutual mistake or a unilateral mistake induced by the other party’s fraudulent misrepresentation” … . “In a case of mutual mistake, the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement” … . “Reformation is not granted for the purpose of alleviating a hard or oppressive bargain, but rather to restate the intended terms of an agreement when the writing that memorializes that agreement is at variance with the intent of both parties” … .

Here, the Supreme Court properly determined that the plaintiff established the existence of a mutual mistake by clear and convincing evidence … . The parties’ contract of sale clearly and unambiguously provided that the purchase price for the subject property was $550,000, which was to be paid, in part, by a $350,000 purchase money mortgage. Based upon the proof at trial, it was clear that the $206,065.79 balloon payment calculated by the plaintiff’s attorney and mutually agreed upon by the parties was the product of an inadvertent error, as it was inconsistent with the parties’ agreement that the mortgage was to be in the amount of $350,000. “[I]f, by the mistake of the scrivener or by any other inadvertence, [a] writing does not express the agreement actually made, it may be reformed by the court” … . Gunther v Vilceus, 2016 NY Slip Op 05847, 2nd Dept 8-24-16

CONTRACT LAW (DOCTRINE OF MUTUAL MISTAKE APPLIED TO REFORM NOTE AND MORTGAGE)/MUTUAL MISTAKE (DOCTRINE OF MUTUAL MISTAKE APPLIED TO REFORM NOTE AND MORTGAGE)

/

RE-SERVICE AFTER EXPIRATION OF STATUTE OF LIMITATIONS PROPERLY ALLOWED.

The Second Department determined re-service of the summons and complaint after the statute of limitations had passed was properly allowed:

The Supreme Court providently exercised its discretion in granting that branch of the plaintiffs’ cross motion which was pursuant to CPLR 306-b to extend the time to serve the defendant with the summons and complaint in the interest of justice … . While the action was timely commenced, the statute of limitations had expired when the plaintiffs cross-moved for relief, the plaintiffs re-served the defendant within a reasonable time after learning that the timely service of process was being challenged by the defendant as defective, and the defendant had actual notice of the action within 120 days of its commencement … . Furthermore, after re-serving the defendant, the plaintiffs cross-moved within a reasonable time for an extension of time to serve the defendant, and there was no identifiable prejudice to the defendant attributable to the delay in service … . Rivera v Rodriguez, 2016 NY Slip Op 05855, 2nd Dept 8-24-16

CIVIL PROCEDURE (RE-SERVICE AFTER EXPIRATION OF STATUTE OF LIMITATIONS PROPERLY ALLOWED)/STATUTE OF LIMITATIONS (RE-SERVICE AFTER EXPIRATION OF STATUTE OF LIMITATIONS PROPERLY ALLOWED)

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