You are here: / Sworn Allegations About the Conduct of a Juror in Defendant’s Motion...

Search Results

/

Sworn Allegations About the Conduct of a Juror in Defendant’s Motion to Set Aside the Verdict Were Sufficient to Require a Hearing About Whether a Substantial Right Had Been Prejudiced

The Fourth Department determined defendant was entitled to a hearing on his motion to set aside the verdict:

The sworn allegations in defendant’s moving papers, i.e., that he learned after the verdict was rendered that a juror who had allegedly been “holding out” contacted defendant’s aunt between the first and second days of deliberation and discussed the likelihood of a guilty verdict when the jury reconvened the following morning, “required a hearing on the issue whether the juror’s alleged misconduct prejudiced a substantial right of defendant” … . People v Tucker, 2014 NY Slip Op 03415, 4th Dept 5-9-14

 

/

Defendant’s Motion for DNA Testing Should Have Been Granted

The Fourth Department held defendant’s post-conviction motion for DNA testing was sufficient to require a hearing to determine if DNA evidence still existed and, if so, whether it could be tested. The evidence identifying the defendant as the attacker was not overwhelming and semen, found on the victim’s clothes, had never been tested:

Following the attack, a semen stain was found on the crotch of the jumpsuit that the complainant had been wearing. There was no indication that the source of the semen could have been anyone but the attacker …, but no DNA testing was performed on the jumpsuit. Based on the record before us, we conclude that “the evidence of defendant’s guilt was not so overwhelming that a different verdict would not have resulted if . . . DNA testing excluded him” as the source of the semen on the jumpsuit … . We therefore remit the matter to Supreme Court for a hearing to determine whether the jumpsuit is still in existence and, if so, whether there is sufficient DNA material for testing … . People v Flax, 2014 NY Slip Op 03416, 4th Dept 5-9-14

 

/

Newly Discovered Evidence Indicating Defendant Was Not the Shooter Required a New Trial

The Fourth Department, over a dissent, determined defendant was entitled to a new trial on the basis of new evidence presented in his motion to set aside the verdict:

It is well settled that, in order to establish entitlement to a new trial on the ground of newly discovered evidence, “a defendant must prove that there is newly discovered evidence: (1) which will probably change the result if a new trial is granted; (2) which was discovered since the trial; (3) which could not have been discovered prior to trial; (4) which is material; (5) which is not cumulative; and[] (6) which does not merely impeach or contradict the record evidence’ ” … .

We conclude that defendant met his burden of establishing all six factors by a preponderance of the evidence (see CPL 440.30 [6]…).  People v Bryant, 2014 NY Slip Op 03419, 4th Dept 5-9-14

 

/ ,

Evidence Seized In Violation of Probationer’s Constitutional Rights Should Not Have Been Used as the Basis for a Probation Revocation

The Fourth Department determined evidence which was suppressed because it was unconstitutionally seized could not be used to support a revocation of probation, noting that a probationer loses some privacy and Fourth Amendment rights, but not all of both:

The Court of Appeals has “recognized . . . that a probationer loses some privacy expectations and some part of the protections of the Fourth Amendment, but not all of both” …, and “that a person on parole, although legally in custody and subject to supervision, is nevertheless constitutionally entitled to protection against unreasonable searches and seizures. A person on probation, subject to similar restraints (see CPL 410.50, subds. 1, 2)[,] should be similarly protected” … . Furthermore, with respect to evidence that was illegally seized from a person under a revocable disposition, “the Court of Appeals has applied the New York constitution to suppress such evidence at a parole revocation hearing . . . , and it would seem to follow a fortiori that such evidence would not be admissible at a probation violation hearing, which is even closer to a criminal action than a parole violation hearing” … . Here, the court concluded that the stop and search of defendant and his home were violative of defendant’s rights under the Constitutions of New York and the United States. Consequently, the court erred in relying upon the evidence seized as a result of those improper searches to conclude that defendant violated a condition of his probation… . People v Robinson, 2015 NY Slip Op 03967, 4th Dept 5-8-15

 

/ ,

Judge’s Failure to Apply the “Prejudice versus Probative” Balancing Test to Evidence of Uncharged Bad Acts and Crimes, Combined with the Judge’s Failure to Give the Jury Limiting Instructions About How Such Evidence is to Be Considered by Them, Required Reversal of Defendant’s Conviction

The Third Department reversed defendant’s conviction because the judge never ruled on the admissibility of uncharged prior bad acts and crimes by applying the “prejudicial effect versus probative value” Molineux test, and the judge never gave limiting instructions to the jury about the limited applicability of such evidence.  The charged offense was assault by administering alcohol to the victim (defendant’s wife) without her consent.  The prior bad acts and crimes which were entered into evidence included nonconsensual sex, withholding medication and domestic violence:

To be sure, “[p]rior bad acts in domestic violence situations are more likely to be considered relevant and probative evidence because the aggression and bad acts are focused on one particular person, demonstrating the defendant’s intent, motive, identity and absence of mistake” … and, further, may be “relevant to provide background information concerning the context and history of [the] defendant’s relationship with the victim” … . That said, even assuming that all of the uncharged crimes/prior bad acts at issue here, which, as noted previously, included allegations of nonconsensual sex, domestic violence, bullying and the withholding of certain medications from the victim, fell within one or more of the recognized Molineux exceptions … and indeed constituted relevant and probative evidence, the record fails to reflect that County Court balanced the probative value of such evidence against its prejudicial effect. More to the point, even further assuming that our review of the record disclosed evidence of County Court’s implicit finding in this regard …, the record nonetheless reveals that, despite an appropriate request by defense counsel during the course of the charge conference, no appropriate limiting instructions were provided to the jury … . The absence of such instructions clearly impacted the jury’s deliberations — as evidenced by the jury’s inquiry as to whether the coercion charge “encompass[ed] just the use of alcohol or . . . extend[ed] to unwilling sex. People v Elmy, 2014 NY Slip Op 03300, 3rd Dept 5-8-14

 

/

Whether the Insurer Is Obligated to Indemnify the Driver Turns on Whether the Driver Acted Intentionally When His Vehicle Struck the Rear of Decedent’s Vehicle—-There Was a Question of Fact Whether the Incident Was an Accident or the Result of Intentional Conduct

The Fourth Department determined there was a question of fact whether the striking of decedent’s car from behind was intentional or accidental.  If the rear driver acted intentionally, his insurer had no duty to indemnify the rear driver. The court explained the terms “accidental” and “intentional” in this context:

“In deciding whether a loss is the result of an accident, it must be determined, from the point of view of the insured, whether the loss was unexpected, unusual and unforeseen” … . We must look to the allegations of the complaint in the underlying action, but may also consider extrinsic facts … .

Insurable ” [a]ccidental results can flow from intentional acts’ ” … . On the other hand, “when the damages alleged in the [underlying] complaint are the intended result which flows directly and immediately from [the insured’s] intentional act, . . . there is no accident, and therefore, no coverage” … . “[M]ore than a causal connection between the intentional act and the resultant harm is required to prove that the harm was intended” … . The exclusion for an intentional injury, however, will apply where the injuries are ” inherent in the nature’ of the wrongful act”… . Kemper Independence Ins. Co. v Ellis, 2015 NY Slip Op 04011, 4th Dept 5-8-15

 

/ , ,

Fraud Upon the Court Must Be Demonstrated by Clear and Convincing Evidence/Striking of Pleadings and Entering Default Judgment Against Offending Party Appropriate Under the Facts

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the standard for demonstrating a party has committed fraud upon the court is “clear and convincing.”  Under the facts, the court determined that defendants' fraud upon the court had been demonstrated and that striking the pleadings and entering a default judgment against the defendants was appropriate:

We …conclude that in order to demonstrate fraud on the court, the non-offending party must establish by clear and convincing evidence that the offending “party has acted knowingly in an attempt to hinder the fact finder's fair adjudication of the case and his adversary's defense of the action” … . A court must be persuaded that the fraudulent conduct, which may include proof of fabrication of evidence, perjury, and falsification of documents concerns “issues that are central to the truth-finding process” … . Essentially, fraud upon the court requires a showing that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense … . A finding of fraud on the court may warrant termination of the proceedings in the non-offending party's favor … . For “when a party lies to the court and [its] adversary intentionally, repeatedly, and about issues central to the truth-finding process, it can fairly be said that [the party] has forfeited [the] right to have [the] claim decided on the merits” … . Therefore, once a court concludes that clear and convincing evidence establishes fraud on the court, it may strike a pleading and enter a default judgment.

We caution that dismissal is an extreme remedy that “must be exercised with restraint and discretion” … . Dismissal is most appropriate in cases like this one, where the conduct is particularly egregious, characterized by lies and fabrications in furtherance of a scheme designed to conceal critical matters from the court and the nonoffending party; where the conduct is perpetrated repeatedly and wilfully, and established by clear and convincing evidence, such as the documentary and testimonial evidence found here. Dismissal is inappropriate where the fraud is not “central to the substantive issues in the case” …, or where the court is presented with “an isolated instance of perjury, standing alone, [which fails to] constitute a fraud upon the court” … . In such instances, the court may impose other remedies including awarding attorney fees …, awarding other reasonable costs incurred … , or precluding testimony … . In the rare case where a court finds that a party has committed fraud on the court warranting dismissal, the court should note why lesser sanctions would not suffice to correct the offending behavior … . CDR Creances SAS v Cohen, 2014 NY Slip Op 03294, CtApp 5-8-14

 

/

Person Injured After Being Thrown from a Motorcycle Is an “Occupant” of the Motorcycle Within the Meaning of the Insurance Law and Is Therefore Not Eligible for First-Party No-Fault Benefits

The Fourth Department, in a full-fledged opinion by Justice Sconiers, determined a person injured after being thrown from a motorcycle was an “occupant” of the motorcycle within the meaning of the Insurance Law and therefore ineligible for first-party no-fault benefits:

Previously, motorcycle operators and passengers injured in motor vehicle accidents were generally entitled to first-party benefits under the no-fault law. Former section 672 (1) (a) of the Insurance Law provided that those entitled to first-party benefits under the no-fault scheme encompassed “persons, other than occupants of another motor vehicle.” That category included motorcyclists on a par with pedestrians … . The statute was amended in 1977 to exclude occupants of motorcycles from such benefits (see L 1977, ch 892, § 9), thereby terminating the treatment of motorcycle occupants “as pedestrians rather than motorists [who] enjoy the benefits of no-fault at no cost” … . The successor of the amended statute, Insurance Law § 5103 (a) (1), currently provides that, under a policy of insurance issued on an automobile, first-party benefits are available to “[p]ersons, other than occupants of another motor vehicle or a motorcycle” … . The exclusions in the Kemper and Farm and Family insurance policies of “any person while occupying a motorcycle” are consistent with Insurance Law § 5103 (a) (1) and the regulations promulgated thereunder (see 11 NYCRR 65-1.1 [d]). Boyson v Kwasowsky, 2015 NY Slip Op 03964, 4th Dept 5-8-15

 

/

Cell Phone In Possession of Inmate Met the Definition of “Dangerous Contraband” in the Context of a “Promoting Prison Contraband” Charge

The Third Department, in a full-fledged opinion by Justice Egan, determined that a cell phone constituted “dangerous contraband” within the meaning of “promoting prison contraband in the first degree.”  The testimony of the supervising superintendent about the protections put in place concerning the recording and restrictions on inmate phone calls were sufficient to demonstrate the cell phone met the definition of “dangerous contraband:”

In this regard, the Court of Appeals has instructed that “the test for determining whether an item is dangerous contraband is whether its particular characteristics are such that there is a substantial probability that the item will be used in a manner that is likely to cause death or other serious injury, to facilitate an escape, or to bring about other major threats to a detention facility’s institutional safety or security” … . Notably, “the distinction between contraband and dangerous contraband” does not turn upon “whether an item is legal or illegal outside of prison . . . [as] [i]t is obvious that an item, such as a razor, may be perfectly legal outside prison and yet constitute dangerous contraband when introduced into that unpredictable environment” … . Similarly, as our case law makes clear, the item in question need not be inherently dangerous in order to qualify as dangerous contraband. Indeed, although weapons are perhaps the most commonly recognized source of dangerous contraband in a prison setting … , courts have — applying the Finley test — reached the very same conclusion with respect to other items made, obtained or possessed by prison inmates, including illegal quantities of drugs …, a disposable Bic lighter …  and hand-drawn maps or knotted links of wire that could be used to facilitate an escape …. Although the majority in Finley did not expressly address this issue, Judge Pigott opined in his concurrence/dissent that, “[i]f the contraband at issue is not inherently dangerous . . . , the People must present specific, competent proof from which the trier of fact may infer that use of the contraband could potentially create a dangerous situation inside the facility” … . As a cell phone admittedly is not an inherently dangerous item, the question is whether the People adduced sufficient proof to establish the cell phone’s potential to be used in such a pernicious manner as to elevate it to the level of dangerous contraband. People v Green, 2014 NY Slip Op 03303, 3rd Dept 5-8-14

 

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