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COURT MAY NOT PROHIBIT DISCLOSURE ON A GROUND NOT RAISED IN OPPOSITION TO DISCLOSURE.

The Third Department, finding Supreme Court should have allowed disclosure of some of the requested documents, noted that a court cannot justify withholding documents on grounds not raised in opposition to disclosure:

A court is limited to considering only those exemptions to disclosure that are invoked by the party from whom disclosure is sought … . Accordingly, the court should not have relied on a justification for withholding documents … that was not raised by respondent. Matter of Rose v Albany County Dist. Attorney’s Off., 2016 NY Slip Op 05536, 3rd Dept 7-14-16

FREEDOM OF INFORMATION LAW (FOIL) (COURT MAY NOT PROHIBIT DISCLOSURE ON A GROUND NOT RAISED IN OPPOSITION TO DISCLOSURE)

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HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED.

The Third Department reversed Family Court, finding that the hearsay evidence of the child’s statement father had touched her were not corroborated and therefore could not form the basis of a modification of custody:

Evidence of the abuse came in the form of the child’s out-of-court statements and, inasmuch as “the evidentiary standards established in Family Ct Act article 10” were applicable under these circumstances, the question became whether her statements were “sufficiently corroborated” so as to be admissible … . The mother testified that the child stated that the father had touched her, then acted out an incident of sexual abuse. The child also told her therapist that the father had touched her, but the therapist testified that the child declined to give details about the incident and did not opine that the child’s behavior was indicative of sexual assault or that there was reason to believe that her statements were truthful. The therapist expressly declined to offer such an opinion in her testimony, in fact, making clear that she would not say whether the child’s claims were “true or untrue.” The child herself did not testify, and Family Court rejected the belated requests of counsel for the father and the child for a Lincoln hearing.

The corroboration requirement is not demanding and may be “satisfied by any other evidence tending to support the reliability of the [child’s] previous statements” … , but mere “repetition of an accusation” will not suffice … . The proof here did not rise above repetition to include additional evidence such as expert testimony that the child’s behavior or her statements were consistent with abuse, physical evidence of abuse, or the sworn testimony or in camera statements of the child herself … . Matter of Leighann W. v Thomas X., 2016 NY Slip Op 05522, 3rd Dept 7-14-16

 

FAMILY LAW (HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED)/EVIDENCE (FAMILY LAW, HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED)/HEARSAY (FAMILY LAW, HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED)/CUSTODY (HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED)/CORROBORATION (FAMILY LAW, (HEARSAY EVIDENCE OF CHILD’S STATEMENT NOT CORROBORATED, CUSTODY MODIFICATION PETITION SHOULD NOT HAVE BEEN GRANTED)

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SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED.

 

The Third Department, reversing defendant’s conviction, determined the police did not have justification for searching defendant’s duffel bag and the evidence seized from the bag should have been suppressed. Defendant was arrested in his residence on an outstanding warrant. The defendant was handcuffed when the duffel bag was retrieved by a police officer (Gillis) from behind the couch:

To justify a warrantless search of a closed container incident to arrest, the People must satisfy two requirements: “The first imposes spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest. The second, and equally important, predicate requires the People to demonstrate the presence of exigent circumstances” … . Two interests underlie the exigency requirement: “‘the safety of the public and the arresting officer; and the protection of evidence from destruction or concealment'” … .

The People failed to establish the existence of exigent circumstances justifying the search of defendant’s duffel bag. Gillis testified that the bag was still against the wall when defendant was handcuffed and personally searched pursuant to the outstanding warrant, and Gillis had to physically retrieve the bag from behind the couch in order to search it. In addition, the officers had searched the residence prior to arresting defendant and did not find any evidence of drug activity or paraphernalia, the owner told Gillis that there was nothing illegal in the apartment and defendant denied that there was contraband in the bag when questioned about its contents. Thus, the search of the subject bag was improper and its contents — namely, crack cocaine, cell phones and train tickets — should have been suppressed … . People v Ortiz, 2016 NY Slip Op 05521, 3rd Dept 7-14-16

 

CRIMINAL LAW (SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED)/EVIDENCE (CRIMINAL LAW, SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED)/SUPPRESSION (CRIMINAL LAW, SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED)/SEARCH AND SEIZURE  (SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED)/CLOSED CONTAINERS (CRIMINAL LAW, SEARCH OF CLOSED CONTAINER AFTER DEFENDANT HAD BEEN ARRESTED AND HANDCUFFED NOT JUSTIFIED BY EXIGENT CIRCUMSTANCES, CONVICTION REVERSED)

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EVIDENCE OF PRIOR SIMILAR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED.

The Third Department, reversing defendant’s conviction, determined evidence of a prior sexual assault, factually similar to the charged offenses, should not have been admitted in the People’s direct case. The victim of the prior assault testified in detail about it. The Third Department held that the prejudicial effect of the prior assault outweighed its probative value, irrespective of whether the evidence fit any Molineux exception to the rule excluding evidence of prior crimes:

… “[E]vidence of uncharged crimes or prior bad acts may be admitted where they fall within the recognized Molineux exceptions — motive, intent, absence of mistake, common plan or scheme and identity — or where such proof is inextricably interwoven with the charged crimes, provides necessary background or completes a witness’s narrative and, further, the trial court determines that the probative value of such evidence outweighs is prejudicial effect” … . Here, even assuming, without deciding, that the previous victim’s testimony at trial and the corresponding photographs fall within one or more of the aforementioned Molineux exceptions, we agree with defendant that the prejudicial effect of such evidence far outweighs its probative value and, therefore, the People should not have been permitted to introduce such evidence on their case-in-chief. People v Ward, 2016 NY Slip Op 05518, 3rd Dept 7-14-16

CRIMINAL LAW (EVIDENCE OF PRIOR SIMILAR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED)/EVIDENCE (CRIMINAL LAW, EVIDENCE OF PRIOR SIMILAR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED)/PRIOR CRIMES (EVIDENCE OF PRIOR SIMILAR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED/MOLINEUX (EVIDENCE OF PRIOR SIMILAR CRIME SHOULD NOT HAVE BEEN ADMITTED, CONVICTION REVERSED)

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DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF DNA EVIDENCE, STANDING ALONE. WARRANTED REVERSAL FOR INEFFECTIVE ASSISTANCE.

The Third Department reversed defendant’s murder conviction, finding defense counsel ineffective. Counsel’s errors included: (1) failure to object the prosecutor’s mischaracterization of DNA evidence found on defendant’s clothes (this failure alone warranted reversal); (2) failure to object to irrelevant evidence about the victim’s demeanor, education, behavior as a mother, etc. (evidence from as far back as 1998), and an inept summation which misstated the burden and standard of proof and acknowledged the possibility defendant committed the crime:

[The DNA expert] testified … that there were not enough alleles or DNA data to say conclusively that the victim’s DNA was present.

Nevertheless, during summation, the prosecutor repeatedly mischaracterized [the expert’s] testimony and the DNA results by stating multiple times that the victim’s DNA was on the sweatshirt. Specifically, the prosecutor initially stated that “on that sweatshirt is [defendant’s] wife’s DNA.” Later, when discussing [the expert’s] DNA report, the prosecutor incorrectly stated that the report “shows that [the victim’s] DNA was on that area where the bloody spot is.” Even if this last statement could be viewed as asking the jury to make an inference from the evidence at trial, the prosecutor again misstated the testimony by saying, “We have the forensic people who say[] . . . [the victim’s] DNA is on that sweatshirt, to some degree.” Defense counsel made no objections to such characterization of the testimony or DNA analysis. People v Ramsaran, 2016 NY Slip Op 05520, 3rd Dept 7-14-16

CRIMINAL LAW (DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF DNA EVIDENCE, STANDING ALONE. WARRANTED REVERSAL FOR INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF DNA EVIDENCE, STANDING ALONE. WARRANTED REVERSAL FOR INEFFECTIVE ASSISTANCE)/EVIDENCE (CRIMINAL LAW, DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF DNA EVIDENCE, STANDING ALONE. WARRANTED REVERSAL FOR INEFFECTIVE ASSISTANCE)/DNA EVIDENCE (DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF DNA EVIDENCE, STANDING ALONE. WARRANTED REVERSAL FOR INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE OF COUNSEL (DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE PROSECUTOR’S MISCHARACTERIZATION OF DNA EVIDENCE, STANDING ALONE. WARRANTED REVERSAL FOR INEFFECTIVE ASSISTANCE)

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REQUIREMENT THAT NON-CITIZEN DEFENDANT BE INFORMED OF POSSIBILITY OF DEPORTATION APPLIES RETROACTIVELY TO DEFENDANT WHO ABSCONDED BEFORE APPEAL PERFECTED.

The First Department, over a two-justice dissent, determined the non-citizen defendant, whose direct appeal was pending when he absconded, was entitled to the protection afforded by People v Peque, 22 NY3d 168, which requires the court to inform the defendant deportation may follow a plea to a felony:

The issue here is whether a defendant whose case still is on direct appeal should be denied the benefit of the Court of Appeals’ ruling in People v Peque … , which is rooted in federal constitutional law, because defendant absconded from parole before his attorney perfected this appeal. We conclude Peque should apply to defendant’s case.

In Peque, the Court of Appeals held that a trial court is obligated to apprise any defendants that if the defendant is not an American citizen, he or she may be deported as a consequence of a guilty plea to a felony … . That decision acknowledged that under federal immigration law, deportation, in many cases, is an inevitable consequence of a noncitizen’s guilty plea and that as part of the defendant’s decision to make a voluntary and intelligent choice to plead guilty, the defendant must be alerted to the deportation consequences by the court. In the instant case, the court did not advise defendant about the immigration consequences flowing from his plea … . People v Tejeda, 2016 NY Slip Op 05541, 1st Dept 7-14-16

 

CRIMINAL LAW (REQUIREMENT THAT NON-CITIZEN DEFENDANT BE INFORMED OF POSSIBILITY OF DEPORTATION APPLIES RETROACTIVELY TO DEFENDANT WHO ABSCONDED BEFORE APPEAL PERFECTED)/APPEALS (CRIMINAL LAW, REQUIREMENT THAT NON-CITIZEN DEFENDANT BE INFORMED OF POSSIBILITY OF DEPORTATION APPLIES RETROACTIVELY TO DEFENDANT WHO ABSCONDED BEFORE APPEAL PERFECTED)/DEPORTATION (CRIMINAL LAW, REQUIREMENT THAT NON-CITIZEN DEFENDANT BE INFORMED OF POSSIBILITY OF DEPORTATION APPLIES RETROACTIVELY TO DEFENDANT WHO ABSCONDED BEFORE APPEAL PERFECTED)/IMMIGRATION LAW  (CRIMINAL LAW, REQUIREMENT THAT NON-CITIZEN DEFENDANT BE INFORMED OF POSSIBILITY OF DEPORTATION APPLIES RETROACTIVELY TO DEFENDANT WHO ABSCONDED BEFORE APPEAL PERFECTED)

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FAILURE TO CONTEST PROSECUTOR’S RACE-NEUTRAL REASONS FOR STRIKING JURORS RENDERED THE ISSUE UNPRESERVED FOR APPEAL.

The Third Department, over a two justice dissent, determined defense counsel’s failure to contest the prosecutor’s race-neutral reasons for striking jurors rendered the issue unpreserved for appeal:

Following the People’s step-two proffer, County Court denied the Batson challenge, without any attempt to respond or protestation registered by defendant. Now, on appeal, defendant contends for the first time that County Court erred in failing to conduct a step-three inquiry. However, “[b]y accepting the People’s explanation without any additional objection at a time [when] it could have been addressed, defendant failed to preserve” this contention for our review … , and we decline to exercise our interest of justice jurisdiction … . In reaching this conclusion, we reaffirm the importance of both the trial court’s attention to each articulated, sequential step of the Batson inquiry, and counsel’s “attention to placing their objections on the record so they may be addressed by the court” … . Indeed, “whatever procedural problems may exist in a Batson inquiry, the overriding concern is that a properly preserved question regarding the ultimate issue of discrimination is meaningfully addressed” … . People v Acevedo, 2016 NY Slip Op 05517, 3rd Dept 7-14-16

CRIMINAL LAW (FAILURE TO CONTEST PROSECUTOR’S RACE-NEUTRAL REASONS FOR STRIKING JUROR RENDERED THE ISSUE UNPRESERVED FOR APPEAL)/JURORS (BATSON CHALLENGE, FAILURE TO CONTEST PROSECUTOR’S RACE-NEUTRAL REASONS FOR STRIKING JUROR RENDERED THE ISSUE UNPRESERVED FOR APPEAL)/APPEALS (BATSON CHALLENGE, FAILURE TO CONTEST PROSECUTOR’S RACE-NEUTRAL REASONS FOR STRIKING JUROR RENDERED THE ISSUE UNPRESERVED FOR APPEAL)/BATSON CHALLENGE (FAILURE TO CONTEST PROSECUTOR’S RACE-NEUTRAL REASONS FOR STRIKING JUROR RENDERED THE ISSUE UNPRESERVED FOR APPEAL)

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INQUIRY INTO WAIVER OF INSANITY DEFENSE DEFICIENT.

The Third Department determined that the court’s inquiry into whether the defendant understood the affirmative defense (insanity) he waived by pleading guilty was insufficient:

Defense counsel advised County Court during the plea colloquy that there were significant issues regarding defendant’s mental state when he attacked the trooper and that, as a result, a psychiatrist had assessed whether defendant “was unable to form the intent necessary” to commit the charged offenses … . Defense counsel then represented that defendant had agreed to accept the proffered plea bargain because the psychiatrist opined that an insanity defense could properly be raised at trial, but that he would be unable to testify to a reasonable degree of medical certainty that defendant “did not understand the nature and consequences of his actions or that his conduct was wrong” (see Penal Law § 40.15). County Court’s response to those statements was limited to confirming that defendant had heard the representations of defense counsel, discussed those issues with him and believed that the plea agreement was “a fair resolution.” The Court of Appeals has made clear, however, that “question[s] to [a] defendant verifying that he [or she] discussed that defense with his [or her] attorney and opted not to assert it” are insufficient under these circumstances … . People v Green, 2016 NY Slip Op 05515, 3rd Dept 7-14-16

CRIMINAL LAW (INQUIRY INTO WAIVER OF INSANITY DEFENSE DEFICIENT)/WAIVER (CRIMINAL LAW, INQUIRY INTO WAIVER OF INSANITY DEFENSE DEFICIENT)/AFFIRMATIVE DEFENSE (CRIMINAL LAW, INQUIRY INTO WAIVER OF INSANITY DEFENSE DEFICIENT)/INSANITY DEFENSE (INQUIRY INTO WAIVER OF INSANITY DEFENSE DEFICIENT)

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INTERMEDIARY BANK OWES NO DUTY TO BENEFICIARY OF AN ELECTRONIC FUNDS TRANSFER WHICH WAS BLOCKED BY A GOVERNMENT ORDER.

The First Department, in a full-fledged opinion by Justice Friedman, reversing Supreme Court, dismissed the lawsuit by the intended beneficiary of an electronic funds transfer (EFT) against an intermediary bank which complied with a government order to freeze the transfer. The court held the intermediary bank owed no duty to the intended beneficiary and properly returned the funds to the originator’s bank when the government order was lifted. An intermediary bank simply facilitates the transfer from the originator’s bank to the beneficiary’s bank:

…[B]ased on the allegations of [the beneficiary’s] complaint, … the originator’s bank — rather than … the intended beneficiary of the failed EFT — was plainly “the entity that passed the EFT on to … the [intermediary] bank where it . . . rest[ed]” … until the federal block was released. It follows that [the originator’s bank] was “the only entity with a property interest in the stopped EFT …” and that, upon the release of the block, [the intermediary bank] properly refunded [the originator’s bank’s] payment for the EFT pursuant to UCC 4-A-402(4), given that the EFT had long since been cancelled by operation of law under UCC 4-A-211(4). It also follows that, pursuant to UCC 4-A-212, [the beneficiary] has no claim against [the intermediary bank] with respect to this transaction. [The intermediary bank] “owed nothing to … the beneficiary since an intermediary bank has no legal obligation to the beneficiary” … . Receivers of Sabena SA v Deutsche Bank A.G., 2016 NY Slip Op 05546, 1st Dept 7-14-16

 

BANKING LAW (INTERMEDIARY BANK OWES NO DUTY TO BENEFICIARY OF AN ELECTRONIC FUNDS TRANSFER WHICH WAS BLOCKED BY A GOVERNMENT ORDER)/UNIFORM COMMERCIAL CODE (INTERMEDIARY BANK OWES NO DUTY TO BENEFICIARY OF AN ELECTRONIC FUNDS TRANSFER WHICH WAS BLOCKED BY A GOVERNMENT ORDER)/UCC (INTERMEDIARY BANK OWES NO DUTY TO BENEFICIARY OF AN ELECTRONIC FUNDS TRANSFER WHICH WAS BLOCKED BY A GOVERNMENT ORDER)

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PROVIDING ELECTRICITY IS A PROPRIETARY FUNCTION; LAWSUIT ALLEGING NEGLIGENT FAILURE TO CUT OFF POWER DURING HURRICANE SANDY ALLOWED TO PROCEED.

The Second Department, over a dissent, determined defendants Long Island Power Authority (LIPA) and National Grid Electric Services (NGES) were not protected by government-function immunity. The lawsuit alleged defendants were negligent in not cutting off electrical power during Hurricane Sandy, resulting in fires which damaged plaintiffs’ property. The court held the defendants were performing proprietary, not governmental, functions and standards of ordinary negligence therefore applied:

… [T]he provision of electricity is properly categorized as a proprietary function. The provision of electricity has traditionally been a private enterprise in this State, and the Legislature clearly created LIPA as a public authority to substitute for a private enterprise … . * * *

… [T]he functions of electric utilities in the ordinary course of providing electricity and in responding adequately to a hurricane are both part of the proprietary core functions of their business. True, here, the appellants’ actions, because of the size of LIPA’s customer base, affected many people and many businesses. True, too, LIPA’s response to the hurricane may have involved complex considerations. But every private electric utility in the region faced the same hurricane. Heeran v Long Is. Power Auth. (LIPA), 2016 NY Slip Op 05486, 2nd Dept 7-13-16

 

NEGLIGENCE (PROVIDING ELECTRICITY IS A PROPRIETARY FUNCTION; LAWSUIT ALLEGING NEGLIGENT FAILURE TO CUT OFF POWER DURING HURRICANE SANDY ALLOWED TO PROCEED)/GOVERNMENTAL IMMUNITY (PROVIDING ELECTRICITY IS A PROPRIETARY FUNCTION; LAWSUIT ALLEGING NEGLIGENT FAILURE TO CUT OFF POWER DURING HURRICANE SANDY ALLOWED TO PROCEED)/PUBLIC UTILITIES (PROVIDING ELECTRICITY IS A PROPRIETARY FUNCTION; LAWSUIT ALLEGING NEGLIGENT FAILURE TO CUT OFF POWER DURING HURRICANE SANDY ALLOWED TO PROCEED)/PROPRIETARY FUNCTION (PROVIDING ELECTRICITY IS A PROPRIETARY FUNCTION; LAWSUIT ALLEGING NEGLIGENT FAILURE TO CUT OFF POWER DURING HURRICANE SANDY ALLOWED TO PROCEED)

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