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PRISONER CONVICTED OF A CRIME COMMITTED WHEN HE WAS SIXTEEN AND SUBJECT TO A LIFE SENTENCE IS CONSTITUTIONALLY ENTITLED TO A PAROLE HEARING WHICH TAKES HIS YOUTH AT THE TIME OF THE OFFENSE INTO ACCOUNT.

The Third Department, in a full-fledged opinion by Justice McCarthy, over a concurrence and a two-justice partial dissent, determined petitioner was entitled to a de novo parole hearing in which his age at the time of the offense (16) is taken into account. Claimant was convicted of strangling his 14-year-old girlfriend and was sentenced to 22 years to life. Since serving 22 years in 2000, claimant, now 54, has been denied parole nine times. The Third Department ruled that the Eighth Amendment protection against cruel and unusual punishment required that the parole board consider petitioner's youth at the time of the offense, noting that claimant has a right not to be punished with a life sentence if the crime reflects transient immaturity:

The [Parole] Board, as the entity charged with determining whether petitioner will serve a life sentence, was required to consider the significance of petitioner's youth and its attendant circumstances at the time of the commission of the crime before making a parole determination. That consideration is the minimal procedural requirement necessary to ensure the substantive Eighth Amendment protections set forth in Graham v Florida (560 US 48 [2010]), Miller v Alabama (___ US ___, 132 S Ct 2455 [2012]) and Montgomery v Louisiana (___ US ___, 136 S Ct 718 [2016]). * * *

… [T]he Supreme Court of the United States held in Miller v Alabama (supra) that mandatory sentences of life without the possibility of parole for juvenile homicide offenders violate the Eighth Amendment's prohibition on cruel and unusual punishment (id. at 2460). As that Court has since clarified, a substantive rule announced in Miller is “that life without parole is an excessive sentence for children whose crimes reflect transient immaturity” (Montgomery v Louisiana, 136 S Ct at 735). The Court considered this guarantee in the context of the sentencing stage, and it found that the “procedural requirement necessary to implement [this] substantive guarantee” is “a hearing where youth and its attendant characteristics are considered” for the purpose of “separat[ing] those juveniles who may be sentenced to life without parole from those who may not” … . * * *

A parole board is no more entitled to subject an offender to the penalty of life in prison in contravention of this rule than is a legislature or a sentencing court. Matter of Hawkins v New York State Dept. of Corr. & Community Supervision, 2016 NY Slip Op 03236, 3rd Dept 4-28-16


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DEFENDANT SHOULD HAVE BEEN PRESENT WHEN DEFENSE COUNSEL, DURING THE TRIAL, REQUESTED TO BE RELIEVED FROM REPRESENTING DEFENDANT, NEW TRIAL ORDERED.

The First Department, reversing defendant's conviction, determined defendant should have been present when defense counsel explained his concerns about defendant to the judge and asked to be relieved from representing the defendant. The request was denied:

In conducting a colloquy on defense counsel's request to be relieved, the court erred in failing to permit defendant to provide any input, or to even be present. At least by the time that the substance of counsel's ex parte application became clear, defendant should have been included in the proceeding.

…[T]his proceeding was an “ancillary proceeding[] [at which] he . . . may have [had] something valuable to contribute” … , and thus that his exclusion from it was error. While defendant may not have been able to justify counsel's removal, we cannot say that the “new matter” brought to light at the ex parte proceeding — where counsel revealed the content of a privileged communication with the court, and expressed the belief that defendant's criticisms of his performance were insincere attempts to sow error in the record — implicated “no potential for meaningful input from [] defendant” … on the subject of whether continued representation by counsel was appropriate.

The proceeding also implicated the court's obligation to make a “minimal inquiry” regarding whether the new facts justified substitution of counsel… . People v Moya, 2016 NY Slip Op 03241, 1st Dept 4-28-16


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DNA TEST RESULTS DEEMED TESTIMONIAL HEARSAY TRIGGERING DEFENDANT’S RIGHT TO CONFRONT THE ANALYST(S) WITH FIRST-HAND KNOWLEDGE OF CRUCIAL STAGES OF THE ANALYSIS.

The Court of Appeals, in an extensive opinion by Judge DiFiore, over an equally extensive three-judge dissenting opinion, determined the results of DNA testing, which matched defendant's DNA to that found on a weapon, should not have been admitted based solely on the testimony of a laboratory analyst who did not witness crucial aspects of the testing. The evidence was deemed “testimonial” requiring the People to produce a witness with first-hand knowledge who can be cross-examined about essential aspects of the analysis:

Here, there was a criminal action pending against defendant, and the gun, found in the basement of a multifamily dwelling where defendant lived, was evidence seized by police for that prosecution. Swabs from the gun were then tested by an accredited public DNA crime laboratory with the primary (truly, the sole) purpose of proving a particular fact in a criminal proceeding — that defendant possessed the gun and committed the crime for which he was charged. The testing analysts purposefully recorded the DNA profile test results, thereby providing the very basis for the scientific conclusions rendered thereon. Under these circumstances, the laboratory reports as to the DNA profile generated from the evidence submitted to the laboratory by the police in a pending criminal case were testimonial. The DNA profiles were generated in aid of a police investigation of a particular defendant charged by an accusatory instrument and created for the purpose of substantively proving the guilt of a defendant in his pending criminal action. * * *

… [W]e conclude that it is the generated numerical identifiers and the calling of the alleles at the final stage of the DNA typing that effectively accuses defendant of his role in the crime charged. … [A] laboratory that uses a … multiple-analyst model, may adapt their operation so that a single analyst is qualified to testify as to the DNA profile testing. For example, an analyst who generated the DNA profile from one sample may also observe the final stage of testing or retesting involved in the generation of the other profile. Nor do we suggest that, when the testing analysts are unavailable, a fully qualified … expert … cannot testify after analyzing the necessary data, including an independent analysis of the computer imaging from the software used for calling the alleles and recording their separate and distinct analysis. Thus, the claim of a need for a horde of analysts is overstated and a single analyst, particularly the one who performed, witnessed or supervised the generation of the critical numerical DNA profile, would satisfy the dictates of Crawford [541 US 36] and Bullcoming [564 US 647]. People v John, 2016 NY Slip Op 03208. CtApp 4-28-16


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BENEFICIARIES OF ESTATE DID NOT HAVE STANDING TO BRING AN ACTION TO PRESERVE AN ESTATE ASSET, ONLY THE PERSONAL REPRESENTATIVE OF THE ESTATE HAS THAT POWER.

The Second Department determined plaintiffs, who were beneficiaries of decedent's estate, did not have standing to bring an action seeking to recover and preserve an asset allegedly wrongfully diverted from decedent's estate prior to her death. Only a personal representative of the estate could bring the action:

EPTL 11-3.2(b) provides that a cause of action for injury to person or property is not lost because of the death of the person in whose favor the cause of action existed, as the cause of action may be commenced or continued by the decedent's personal representative. “[A] beneficiary, absent extraordinary circumstances . . . , cannot act on behalf of [an] estate or exercise [a] fiduciary's rights with respect to estate property” … . Rather, “[t]he appropriate avenue is to be appointed a representative pursuant to the requirements of the EPTL” … .

Here, the Supreme Court correctly determined that the plaintiffs lacked standing to commence an action to recover and preserve an asset alleged to have been wrongfully diverted from the decedent's estate prior to her death … . The plaintiffs, as individual beneficiaries of the decedent's estate, had no independent right to maintain an independent cause of action for the recovery of estate property, as such a right belonged to the personal representative of the decedent's estate … . Stallsworth v Stallsworth, 2016 NY Slip Op 03161, 2nd Dept 4-27-16


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MOTION TO AMEND NOTICE OF CLAIM TO ADD NEW THEORY OF LIABILITY SHOULD NOT HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined plaintiff's motion to amend the notice of claim should not have been granted. The notice of claim alleged plaintiff fell because of an uneven, broken sidewalk. The amended notice of claim alleged plaintiff slipped on snow or ice:

“Amendments to notices of claim are appropriate only to correct good faith and nonprejudicial technical mistakes, defects or omissions, not substantive changes in the theory of liability'” … . Here, the proposed amendments to the notice of claim included a substantive change to the facts and added a new theory of liability. “Such changes are not technical in nature and are not permitted as late-filed amendments to a notice of claim under General Municipal Law § 50-e[6]” … . Moreover, under the circumstances of this case, the granting of leave to serve and file the proposed amended notice of claim prejudiced NYCHA by depriving it of the opportunity to promptly and meaningfully investigate the claim … .

Nor would it have been proper to grant the plaintiff's cross motion on the basis that it was, in effect, for leave to serve and file a late notice of claim. The plaintiff's motion was not made until May 13, 2014, or almost two years and four months after the happening of the accident on January 21, 2012. The plaintiff's failure to petition for leave to serve a late notice of claim within 1 year and 90 days of the date that his claim accrued deprived the Supreme Court of authority to permit late service of a notice of claim … . Robinson v City of New York, 2016 NY Slip Op 03156, 2nd Dept 4-27-16


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CODE PROVISION DID NOT SPECIFICALLY IMPOSE TORT LIABILITY ON ABUTTING LANDOWNERS FOR BREACH OF THE DUTY TO MAINTAIN THE SIDEWALK, LANDOWNER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED.

The Second Department, reversing Supreme Court, determined, under the town code, defendant abutting landowner was not liable for a sidewalk slip and fall. Although the code provision imposed a duty to maintain the sidewalk on the abutting landowner, the provision did not specifically impose tort liability:

Generally, liability for injuries sustained as a result of dangerous and defective conditions on public sidewalks is placed on the municipality, and not the abutting landowner … . ” However, an abutting landowner will be liable to a pedestrian injured by a defect in a sidewalk where the landowner created the defect, caused the defect to occur by some special use of the sidewalk, or breached a specific ordinance or statute which obligates [him or her] to maintain the sidewalk'” … . ” In order for a statute, ordinance or municipal charter to impose tort liability upon an abutting owner for injuries caused by his or her negligence, the language thereof must not only charge the landowner with a duty, it must also specifically state that if the landowner breaches that duty he [or she] will be liable to those who are injured'” … . Kilfoyle v Town of N. Hempstead, 2016 NY Slip Op 03141, 2nd Dept 4-27-16


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STATEMENT IN HOSPITAL RECORD ATTRIBUTED TO PLAINTIFF WAS ADMISSIBLE AS PART OF A BUSINESS RECORD AND AS A PARTY ADMISSION, STATEMENT SHOULD NOT HAVE BEEN EXCLUDED FROM TRIAL.

The Second Department determined defendant was entitled to a new trial on liability because a statement attributed to the plaintiff in a hospital report should not have been excluded. Plaintiff alleged she was struck by defendant's vehicle as she walked behind it. The statement attributed to plaintiff indicated only that she fell in the road. The nurse who wrote the statement would have testified the plaintiff made the statement. The statement was admissible as part of a business record (hospital record) because it was germane to treatment or diagnosis. The statement was also admissible as a party admission:

“Such records are admissible if the proponent offers either foundational testimony under CPLR 4518(a) or certification under CPLR 4518(c)” … . The defendants should have been permitted to call the nurse to testify to establish a foundation for the admission of the entry from the hospital record as a business record. A hearsay entry in a hospital record is admissible under the business records exception to the hearsay rule if the entry is germane to the diagnosis or treatment of the patient … . Further, “if the entry is inconsistent with a position taken by a party at trial, it is admissible as an admission by that party, even if it is not germane to diagnosis or treatment, as long as there is evidence connecting the party to the entry'” … . In this case, the nurse, had she been permitted to testify, would have provided the evidence connecting the plaintiff to the entry, and, since the entry was inconsistent with the plaintiff's position at trial, which was that she was struck by the vehicle, the entry would be admissible as a party admission. Berkovits v Chaaya, 2016 NY Slip Op 03131, 2nd Dept 4-27-16


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DEFENSE VERDICT SHOULD HAVE BEEN SET ASIDE, THE JURY FOUND DEFENDANT NEGLIGENT AND THERE WAS NO REASONABLE VIEW OF THE EVIDENCE IN WHICH DEFENDANT’S NEGLIGENCE WAS NOT A PROXIMATE CAUSE OF THE ACCIDENT.

The Second Department determined plaintiffs' motion to set aside the defense verdict as against the weight of the evidence should have been granted. Defendant acknowledged she turned right coming out of a parking lot but was looking to her left. Defendant struck the pedestrian plaintiffs. The jury found defendant was negligent but that her negligence was not a proximate cause of the accident. The court noted that the plaintiffs may also have been negligent, but there was no reasonable view of the evidence in which defendant's negligence was not a proximate cause:

… [T]he jury's determination that the defendant's negligence was not a proximate cause of the accident did not rest upon any fair interpretation of the evidence … . The issues of negligence and proximate cause are so inextricably interwoven in this case that the jury's finding that the defendant was negligent cannot be reconciled with its finding that the negligence was not a proximate cause of the accident … . That is, the defendant admitted that she turned right out of a parking lot while looking to her left despite the fact that she knew that pedestrians crossed 71st Avenue at that location to access the parking lot from which she was exiting. Notwithstanding any negligence on the part of the plaintiffs, the defendant's negligence in driving in one direction while looking in the other direction and thereby failing to see pedestrians who were there to be seen in the middle of the street was a substantial, not a slight or trivial, cause of this accident … . Accordingly, although the plaintiffs may also have been negligent, no fair interpretation of the evidence supports the jury's finding that the defendant's negligence was not a proximate cause of the accident. Cruz v Jeffrey, 2016 NY Slip Op 03134, 2nd Dept 4-27-16


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INSURED’S EXCUSES FOR DELAY IN NOTIFYING INSURANCE BROKERS OF PENDING ACTION NOT SUPPORTED BY SUFFICIENT EVIDENCE, SUMMARY JUDGMENT IN FAVOR OF DEFENDANT BROKERS PROPERLY GRANTED.

The Second Department determined Supreme Court properly granted summary judgment in favor of the defendant-insurance-brokers who procured the policy on the plaintiff-insured's behalf. The insured did not notify the brokers of the action against the insured for 52 days. The excuses offered by the insured for the delay (complicated policy language, good-faith belief insured was not liable) were not supported by sufficient evidence:

Where an insurance policy requires an insured to provide notice ” as soon as practicable,' such notice must be accorded the carrier within a reasonable period of time. The insured's failure to satisfy the notice requirement constitutes a failure to comply with a condition precedent which, as a matter of law, vitiates the contract” … . “[T]here may be circumstances that excuse a failure to give timely notice, such as where the insured has a good-faith belief of nonliability,' provided that belief is reasonable” … . It is the insured's burden to demonstrate the reasonableness of the excuse … . “Ordinarily, the question of whether the insured had a good-faith belief in nonliability, and whether that belief was reasonable, presents an issue of fact and not one of law” … . “Nevertheless, the issue of whether an insured's excuse for the delay is reasonable may be determined as a matter of law where the evidence, construing all inferences in favor of the insured, establishes that the belief was unreasonable or in bad faith'” … . Rockland Exposition, Inc. v Marshall & Sterling Enters., Inc., 2016 NY Slip Op 03157, 2nd Dept 4-27-16


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