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“TRIAL PREPARATION” EXCEPTION TO A DETERMINATION WHETHER A PHOTOGRAPHIC DISPLAY IS UNDULY SUGGESTIVE, IN THE FORM OF A HERNER HEARING, SHOULD NO LONGER BE EMPLOYED.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissenting opinion by Judge Lippman, held that the “trial preparation” exception to a determination whether a photographic display is unduly suggestive, in the form of a Herner hearing, should no longer be employed. The complainant was shown a photograph of the defendant shortly before trial, ostensibly as part of “trial preparation.” Defense counsel asked for a full-fledged Wade hearing to determine whether the single-photograph-showing was unduly suggestive.  Instead only a Herner hearing was held to determine if a judicial determination of suggestiveness was needed. The trial court determined no judicial determination of suggestiveness was necessary. Although the Court of Appeals found the trial court erred in not conducting a full Wade hearing, it further found the complainant’s identification of defendant was otherwise validated by an “independent source.” The dissent disagreed and argued the conviction should be reversed:

Defendant claims that the trial preparation exception recognized in Herner is inconsistent with New York’s approach to suggestive pre-trial identifications. We agree. By employing this truncated hearing protocol, the court failed to reach the essential question whether the photograph display was unduly suggestive, and, if so, whether it tainted complainant’s identification of defendant. When a defendant challenges the suggestiveness of an out-of-court viewing of defendant’s likeness, the central issue presented for judicial consideration is whether the pre-trial display is conducted under circumstances bearing the earmarks of improper influence and unreliability, which create the risk of mistaken identification and thus infect the truth-seeking process. People v Marshall, 2015 NY Slip Op 09313, CtApp 12-17-15

CRIMINAL LAW (TRIAL PREPARATION EXCEPTION TO WADE HEARING REJECTED)/IDENTIFICATION (TRIAL PREPARATION EXCEPTION TO WADE HEARING REJECTED)/HERNER HEARING (TRIAL PREPARATION EXCEPTION TO WADE HEARING REJECTED)/WADE HEARING (TRIAL PREPARATION EXCEPTION TO WADE HEARING REJECTED)

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WHERE NO NOTICE OF APPEAL IS FILED, A CONVICTION AND SENTENCE BECOMES FINAL WHEN THE 30-DAY PERIOD FOR FILING A NOTICE OF APPEAL EXPIRES.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, over a dissenting opinion by Judge Rivera, determined a judgment of conviction and sentence becomes final when the 30-day period for filing a notice of appeal expires (where no notice is filed). Here the issue was whether the defendant could move to vacate his conviction by guilty plea because he was not informed of the deportation consequences of the plea. Because the motion to vacate would not be available if defendant’s conviction and sentence became final before Padilla v Kentucky (559 US 356) was decided (requiring that a defendant be informed of deportation consequence of a plea), the date of finality was determinative. If the finality date is 30 days after conviction and sentence, defendant’s conviction and sentence would have been final before Padilla was decided. If, as defendant argued, the conviction and sentence became final one year and 30 days after the conviction and sentence, when the time for moving to file a late notice of appeal expired, defendant’s conviction and sentence would not have been final before Padilla was decided. Because the Court of Appeals decided the conviction and sentence became final when no notice of appeal was filed within 30 days, defendant could not move to vacate his conviction:

Adopting defendant’s reasoning would result in uncertainty in the finality of judgments in many procedural situations. For example, a defendant who takes a direct appeal to the Appellate Division but does not seek leave to appeal to this Court in a timely fashion could argue that the judgment was not final until one year and 30 days after the Appellate Division affirmance, inasmuch as the defendant could have sought leave from this Court to file a belated application for discretionary review pursuant to CPL 460.30 (1). Or, a defendant who has filed a notice of appeal with the Appellate Division but has had the appeal dismissed due to failure to perfect could argue that the judgment is not yet final, inasmuch as the defendant could ask the Appellate Division to vacate the dismissal of the appeal.

Indeed, if we adopt defendant’s logic, other defendants who did not take a direct appeal conceivably could argue that their judgments were never final, inasmuch as they could seek to file a late notice of appeal even after the one-year grace period of CPL 460.30 has expired by moving for a writ of error coram nobis … . People v Varenga, 2015 NY Slip Op 09312, CtApp 12-17-15

CRIMINAL LAW (WHERE NO NOTICE OF APPEAL IS FILED, A JUDGMENT OF CONVICTION AND SENTENCE BECOMES FINAL WHEN THE 30-DAY PERIOD FOR FILING A NOTICE OF APPEAL EXPIRES)/JUDGMENT OF CONVICTION AND SENTENCE (BECOMES FINAL UPON EXPIRATION OF 30-DAY PERIOD FOR FILING A NOTICE OF APPEAL)

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FAILURE TO PRESERVE PHOTO ARRAY GIVES RISE TO A REBUTTABLE PRESUMPTION THE PHOTO ARRAY WAS SUGGESTIVE; THE PRESUMPTION CAN BE REBUTTED BY DETAILING THE PROCEDURES USED TO SAFEGUARD AGAINST SUGGESTIVENESS.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, with a concurring opinion by Judge Abdus-Salaam, adopted an analytical framework for determining whether a photo array which has not been preserved is unduly suggestive. When a  photo array is not preserved, a presumption arises that the array was suggestive. That presumption can be rebutted. If the presumption is rebutted, the burden of demonstrating undue suggestiveness passes to the defendant. Here, the victim was shown over 100 computer generated images after the police entered criteria based upon eyewitness-descriptions of the perpetrator. Because those images were not preserved, a presumption of suggestiveness arose. Evidence that the victim picked out the defendant, and only the defendant, from the 100 images rebutted that presumption. Defendant thereafter did not meet his burden of showing undue suggestiveness:

Under Appellate Division case law, “the failure of the police to preserve a photographic array [shown to an identifying witness] gives rise to a rebuttable presumption that the array was suggestive” … . The rebuttable presumption fits within the burden-shifting mechanism in the following manner. Failure to preserve a photo array creates a rebuttable presumption that the People have failed “to meet their burden of going forward to establish the lack of suggestiveness” … . To the extent the People are silent about the nature of the photo array, they have not met their burden of production. On the other hand, the People may rebut the presumption by means of testimony “detailing the procedures used to safeguard against suggestiveness” …, in which case they have met their burden, and the burden shifts to the defendant. Although we have not expressly adopted this presumption of suggestiveness before, we endorse it now. People v Holley, 2015 NY Slip Op 09314, CtApp 12-17-15

CRIMINAL LAW (PHOTO ARRAY, PRESUMPTION OF SUGGESTIVENESS IF NOT PRESERVED)/IDENTIFICATION (PHOTO ARRAY, PRESUMPTION OF SUGGESTIVENESS IF NOT PRESERVED)/PHOTO ARRAY (PRESUMPTION OF SUGGESTIVENESS IF NOT PRESERVED)

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THE COURT OF APPEALS CAN HEAR THE APPEAL OF AN UNPRESERVED SENTENCING ISSUE RAISED FOR THE FIRST TIME IN A MOTION TO VACATE THE SENTENCE; A FOREIGN STATUTE WHICH CAN BE VIOLATED BY AN ACT WHICH IS NOT A FELONY IN NEW YORK CAN NOT SERVE AS A PREDICATE FELONY, IRRESPECTIVE OF THE ACTUAL FACTS UNDERLYING THE FOREIGN CONVICTION.

The Court of Appeals, in a full-fledged opinion by Judge Stein, over a full-fledged dissenting opinion by Judge Pigott, determined the Court of Appeals could hear the appeal of an unpreserved sentencing issue first raised in a motion to vacate the sentence (Criminal Procedure Law 440.20) and further determined that a Washington DC robbery conviction should not have been deemed a predicate felony. Because the DC statute could be violated by “snatching” property from someone, an act which would not be felony robbery in New York, the Court of Appeals held it could not be the basis for defendant’s conviction as a second felony offender, irrespective of whether the actual facts underlying the DC conviction would constitute a felony in New York:

A CPL 440.20 motion is the proper vehicle for raising a challenge to a sentence as “unauthorized, illegally imposed or otherwise invalid as a matter of law” (CPL 440.20 [1]), and a determination of second felony offender status is an aspect of the sentence (see CPL 70.06 [included in CPL article 70, addressing sentences of imprisonment]). One of the legal defects that can be challenged in a CPL 440.20 motion is an alleged error in sentencing a defendant as a second or third felony offender, including the decision to consider certain prior convictions as predicates. Raising the predicate felony sentencing issue in a CPL 440.20 motion serves the goals and purposes of the preservation rule by permitting the parties to present their arguments on the issue in the trial court, creating a record for appellate review, and allowing the trial court the first opportunity to correct any error [FN3]. Thus, we may address defendant’s current challenge — that the sentence was illegal because the D.C. conviction did not render him a second felony offender — on the appeal of the denial of his CPL 440.20 motion to set aside the sentence. * * *

… [U]nder the D.C. statute the taking can occur (1) by force or violence, or (2) by putting in fear. The force or violence element can be accomplished (1) against resistance, or (2) by sudden or stealthy seizure, or (3) by snatching … . Stated another way, “the statute must be interpreted to include ‘stealthy seizure’ as a form of ‘force or violence'” … . The statutory language means that the crime can be committed in different ways, and the phrase “sudden or stealthy seizure or snatching” does not describe separate criminal acts required by the statute in addition to the use of “force or violence” … . Consequently, we do not look at the underlying accusatory instrument to determine if the crime is equivalent to a New York felony … . Because the statute, itself, indicates that a person can be convicted of the D.C. crime without committing an act that would qualify as a felony in New York (i.e., by pickpocketing), defendant’s D.C. conviction for attempt to commit robbery was not a proper basis for a predicate felony offender adjudication … . People v Jurgins, 2015 NY Slip Op 09311, CtApp 12-17-15

CRIMINAL LAW (APPEAL OF UNPRESERVED SENTENCING ISSUE LIES FROM DENIAL OF A MOTION TO VACATE THE SENTENCE)/CRIMINAL LAW (FOREIGN STATUTE WHICH CAN BE VIOLATED BY AN ACT WHICH IS NOT A FELONY IN NEW YORK CAN NOT BE THE BASIS OF A PREDICATE FELONY)/APPEALS (CRIMINAL LAW, APPEAL OF UNPRESERVED SENTENCING ISSUE LIES FROM DENIAL OF A MOTION TO VACATE THE SENTENCE)/PREDICATE FELONY (A FOREIGN STATUTE WHICH CAN BE VIOLATED BY AN ACT WHICH IS NOT A FELONY IN NEW YORK CAN NOT BE THE BASIS FOR A PREDICATE FELONY)/FOREIGN FELONY (A FOREIGN STATUTE WHICH CAN BE VIOLATED BY AN ACT WHICH IS NOT A FELONY IN NEW YORK CAN NOT BE THE BASIS FOR A PREDICATE FELONY)

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HEARSAY STATEMENT BY AN UNAVAILABLE WITNESS SHOULD HAVE BEEN ADMITTED AS A STATEMENT AGAINST PENAL INTEREST.

The Court of Appeals, in a full-fledged opinion by Judge Lippman, over a dissenting opinion by Judge Pigott, determined that a statement made by an unavailable witness should have been admitted as a statement against penal interest. The defendant was convicted of driving while intoxicated. The out-of-court statement made by the unavailable witness indicated that she, not the defendant, was driving. The Court of Appeals affirmed the Appellate Division, reversed defendant's conviction and ordered a new trial. The court held that all of the following elements of the declaration-against-penal-interest exception to the hearsay rule were supported by sufficient evidence at trial:

The declaration-against-interest exception to the hearsay rule “flows from the fact that a person ordinarily does not reveal facts that are contrary to his own interest” unless those facts are true … . A statement qualifies as a declaration against interest if four elements are met: (1) the declarant is unavailable to testify as a witness; (2) when the statement was made, the declarant was aware that it was adverse to his or her penal interest; (3) the declarant has competent knowledge of the facts underlying the statement; and (4) supporting circumstances independent of the statement itself attest to its trustworthiness and reliability … . People v Soto, 2015 NY Slip Op 09316, CtApp 12-17-15

CRIMINAL LAW (STATEMENT AGAINST PENAL INTEREST SHOULD HAVE BEEN ADMITTED)/EVIDENCE (STATEMENT AGAINST PENAL INTEREST SHOULD HAVE BEEN ADMITTED)/HEARSAY (STATEMENT AGAINST PENAL INTEREST SHOULD HAVE BEEN ADMITTED)/STATEMENT AGAINST PENAL INTEREST (REVERSIBLE ERROR TO EXCLUDE)

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PROSECUTION’S USE OF EVIDENCE OF DEFENDANT’S POST-ARREST SILENCE VIOLATED DEFENDANT’S DUE PROCESS RIGHTS UNDER THE STATE CONSTITUTION; THE ERROR WAS DEEMED HARMLESS HOWEVER.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a dissenting opinion by Judge Pigott (who adopted the dissent by Justice Garry in the Appellate Division), determined that the prosecution’s proof of defendant’s post-Miranda silence as he was being transported by the police violated defendant’s due process rights under the state constitution. The error, however, was deemed harmless because the court found there was no reasonable possibility the error contributed to defendant’s conviction. The defendant’s conviction was therefore upheld. The defendant acknowledged commission of the crimes (two murders) but raised the extreme emotional disturbance (EED) defense. The Court of Appeals held that evidence of defendant’s silence upon arrest, which apparently was aimed at disproving or calling into question the EED defense, did not contribute to the jury’s rejection of the EED defense. The opinion includes extensive discussions of the use of evidence of a defendant’s silence and the related violation of state constitutional rights, the EED proof requirements, and ineffective assistance of counsel. People v Pavone, 2015 NY Slip Op 09315, CtApp 12-17-15

CRIMINAL LAW (PRESENTING EVIDENCE OF DEFENDANT’S POST-ARREST SILENCE VIOLATED DEFENDANT’S DUE PROCESS RIGHTS UNDER THE STATE CONSTITUTION)/EVIDENCE (PRESENTING EVIDENCE OF DEFENDANT’S POST-ARREST SILENCE VIOLATED DEFENDANT’S DUE PROCESS RIGHTS UNDER THE STATE CONSTITUTION)/SILENCE (PRESENTING EVIDENCE OF DEFENDANT’S POST-ARREST SILENCE VIOLATED DEFENDANT’S DUE PROCESS RIGHTS UNDER THE STATE CONSTITUTION)

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PLAINTIFF IN PERSONAL INJURY ACTION NOT REQUIRED TO DISCLOSE (1) FACEBOOK PHOTOGRAPHS SHE DID NOT INTEND TO INTRODUCE AT TRIAL AND (2) INFORMATION ABOUT POST-ACCIDENT MESSAGES.

The First Department, over an extensive dissenting memorandum by Justice Saxe, reversing Supreme Court, determined plaintiff in a personal injury action was not required to turn over to the defendant post-accident photographs of herself posted on Facebook which she does not intend to introduce at trial, and, further, plaintiff was not required to provide defendant with authorizations allowing Facebook to disclose when private messages were posted by the plaintiff after the accident and how long those messages were:

CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” In determining whether the information sought is subject to discovery, “[t]he test is one of usefulness and reason” … . ” It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims'” … . Discovery demands are improper if they are based upon ” hypothetical speculations calculated to justify a fishing expedition'” … .

This Court has consistently applied these settled principles in the context of discovery requests seeking a party’s social media information.  Forman v Henkin, 2015 NY Slip Op 09350, 1st Dept 12-17-15

MONTHLY COMPILATION INDEX ENTRIES:

CIVIL PROCEDURE (DISCLOSURE OF FACEBOOK PHOTOGRAPHS AND INFORMATION ABOUT POST-ACCIDENT MESSAGES)/DISCLOSURE (FACEBOOK PHOTOGRAPHS AND INFORMATION ABOUT POST-ACCIDENT MESSAGES)/FACEBOOK (DISCLOSURE OF PHOTOGRAPHS AND INFORMATION ABOUT POST-ACCIDENT MESSAGES)

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AGREEMENT ALLOWING CASINO GAMBLING ON ONEIDA NATION LAND DID NOT VIOLATE TOWNS’ “HOME RULE” RIGHTS.

The Third Department, in a full-fledged opinion by Justice Garry, determined the petitioners, the Town of Vernon and the Town of Verona, did not have standing to attack an agreement (ratified by the New York Gaming Economic Development Act of 2013 [UNYGEDA]) allowing the Oneida Nation to implement legalized casino gambling. The towns argued that the agreement violated the towns’ “home rule” rights by removing land from their zoning and environmental authority, as well as preventing the collection of property taxes. The Third Department held that it was the placing of Oneida Nation land in trust (by the federal Department of the Interior) which caused these negative consequences and the trust was created before the agreement at issue:

These negative consequences … did not result from the agreement or from the UNYGEDA, but, instead, from the decision by the Department to place the lands in trust. That decision had already been made when the agreement was executed, and it was unaffected by any State action other than the agreement’s provision that the State and the Counties would discontinue then-pending federal litigation that challenged the Department’s decision. In 2014, the State and Counties did so … . The State has no constitutional obligation to pursue litigation, nor have petitioners established that the litigation would have resulted in the reversal of the Department’s decision to place the lands in trust if it had not been settled. Further, the discontinuance of the State’s claims did not foreclose the Towns from pursuing separate federal litigation that challenged the Department’s action, which they did until the action was dismissed on the merits in 2015 … . Thus, the State’s actions did not cause the harm that forms the basis of the Towns’ claims. Accordingly, the Towns failed to establish that the agreement and the UNYGEDA impinged upon their home rule powers, and Supreme Court properly ruled that they lacked the capacity to bring this action/proceeding. Matter of Town of Verona v Cuomo, 2015 NY Slip Op 09338, 3rd Dept 12-17-15

MONTHLY COMPILATION INDEX ENTRIES:

MUNCIPAL LAW (AGREEMENT IMPLEMENTING CASINO GAMBLING ON ONEIDA NATION LAND DID NOT VIOLATE TOWNS’ HOME RULE RIGHTS)/HOME RULE (AGREEMENT IMPLEMENTING CASINO GAMBLING ON ONEIDA NATION LAND DID NOT VIOLATE TOWNS’ HOME RULE RIGHTS)/GAMBLING (AGREEMENT IMPLEMENTING CASINO GAMBLING ON ONEIDA NATION LAND DID NOT VIOLATE TOWNS’ HOME RULE RIGHTS)/ONEIDA NATION (AGREEMENT IMPLEMENTING CASINO GAMBLING ON ONEIDA NATION LAND DID NOT VIOLATE TOWNS’ HOME RULE RIGHTS)

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SUPERMARKET EMPLOYEES HAD NO LEGAL DUTY TO AID AN UNCONSCIOUS PERSON IN A CAR IN THE SUPERMARKET PARKING LOT.

The Third Department determined employees of Tops supermarket did not have a duty to come to the aid of decedent, who died in his parked car in the Tops parking lot. Decedent and companions were drinking and doing drugs. When decedent was unconscious, his companions placed him in his own car and allegedly told Tops employees decedent was in need of emergency aid. The court held that the Tops employees did not have a legal duty to aid decedent:

“In any negligence action, the threshold issue before the court is whether the defendant owed a legally recognized duty to the plaintiff” … . This is frequently a “difficult task [and,] [d]espite often sympathetic facts in a particular case before them, courts must be mindful of the precedential, and consequential, future effects of their rulings, and limit the legal consequences of wrongs to a controllable degree” … . Consonant with the premise that a moral duty does not equate with a legal duty … , it is the general rule that “one does not owe a duty to come to the aid of a person in peril” … . Exceptions to the general rule exist, such as, for example, a common carrier’s duty to take reasonable action to protect a passenger who is being assaulted … .

Here, although Tops was open to shoppers, this did not necessarily create an affirmative duty to come to the aid of anyone who was anywhere on its property no matter how unrelated such person’s presence was to Tops’ function as a grocery store. Decedent was not a customer of Tops, neither he nor his companions were on the premises for any activity related in any manner to Tops’ business, Tops’ employees did not participate in any fashion in the conduct of decedent’s companions, it is not alleged that Tops’ employees saw or had any contact with decedent on the premises, and Tops’ employees did not take any actions that put decedent in a worse position than the one in which his companions left him. Daily v Tops Mkts., LLC, 2015 NY Slip Op 09336, 3rd Dept 12-17-15

NEGLIGENCE (NO LEGAL DUTY TO AID UNCONSCIOUS PERSON IN SUPERMARKET PARKING LOT)/DUTY OF CARE (NO LEGAL DUTY TO AID UNCONSCIOUS PERSON IN SUPERMARKET PARKING LOT)

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WRONGFUL BIRTH CAUSE OF ACTION ACCRUES UPON BIRTH OF THE CHILD, NOT UPON THE TERMINATION OF TREATMENT CULMINATING IN THE IMPLANTATION OF A FERTILIZED DONOR EGG.

The First Department, in a full-fledged opinion by Justice Friedman, over a partial dissent, determined that plaintiffs’ action for wrongful birth accrued upon the birth of the child, not when the procedure implanting a fertilized donated egg was complete. The plaintiffs alleged that a donor egg was not adequately screened for genetic defects and that, in fact, a genetic defect in the egg was passed on to plaintiffs’ child:

This is a medical malpractice action for “wrongful birth” … , in which it is alleged that defendants’ failure to perform adequate genetic screening of an egg donor for an in vitro fertilization resulted in the conception and birth of plaintiffs’ impaired child. The primary question raised on this appeal is whether plaintiffs’ wrongful birth cause of action accrued upon the termination of defendants’ treatment of the plaintiff mother, less than two months after the implantation of the embryo, or upon the birth of the infant several months later. We hold that the wrongful birth claim accrued upon the birth of the infant and, therefore, was not barred by the applicable statute of limitations (CPLR 214-a) when this action was commenced within 2½ years after the birth. * * *

In the case of a claim for wrongful birth, “the parents’ legally cognizable injury is the increased financial obligation” of raising an impaired child … , … . Whether this legally cognizable injury will befall potential parents as the result of the gestation of an impaired fetus cannot be known until the pregnancy ends. Only if there is a live birth will the injury be suffered. Thus, until there is a live birth, the existence of a cognizable legal injury that will support a wrongful birth cause of action cannot even be alleged . Without legally cognizable damages, there is no legal right to relief, and “the Statute of Limitations cannot run until there is a legal right to relief” … . Accordingly, the statute of limitations begins to run on a wrongful birth claim upon the live birth of an impaired child, whose care and support will occasion the pecuniary damages the parents may seek to recover. B.F. v Reproductive Medicine Assoc. of N.Y., LLP, 2015 NY Slip Op 09370, 1st Dept 12-17-15

MONTHLY COMPILATION INDEX ENTRIES:

NEGLIGENCE (WRONGFUL BIRTH CAUSE OF ACTION ACCRUES UPON BIRTH OF CHILD)/MEDICAL MALPRACTICE (WRONGFUL BIRTH CAUSE OF ACTION ACCRUES UPON BIRTH OF CHILD)/WRONGFUL BIRTH (CAUSE OF ACTION ACCRUES UPON BIRTH OF CHILD)

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