You are here: / Evidence of a Prior Crime Not Admissible to Prove Intent and Not Admissible...

Search Results

/ ,

Evidence of a Prior Crime Not Admissible to Prove Intent and Not Admissible As Part of a Common Scheme or Plan/Conviction Reversed

The First Department, in a full-fledged opinion by Justice Acosta, over a dissent, determined the admission of evidence of an uncharged crime to demonstrate defendant’s intent required reversal because (1) the proof was not ambiguous about defendant’s intent, and (2) the prior crime was not so similar to the charged crime that it proved the existence of a common scheme or plan.  Defendant was charged with theft of a ring from a man named Cushman.  Extensive proof that defendant had previously stolen jewelry from another person was allowed:

Where intent is at issue but cannot be readily inferred from the commission of the act itself, evidence of prior criminal acts may be used to establish it … . Where, however, proof of the act demonstrates that the defendant acted with the requisite state of mind, Molineux evidence should not be admitted … . Here, proof of defendant’s actions is sufficient to demonstrate that he acted with the requisite intent. Spraying someone in the face with mace, grabbing the person’s ring and running can only indicate an intent to steal the ring. If the jury believed Cushman’s testimony, then it would have to infer that defendant intended to steal the ring from him.   * * *

Nor was [the prior crime evidence] admissible under the common plan or scheme exception, which requires that “there exist[] a single inseparable plan encompassing both the charged and the uncharged crimes” … . “There must be such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations'” …. Indeed, the Court of Appeals noted that “courts have been particularly cautious in permitting proof of uncharged criminal acts to establish a common scheme or plan” … . Evidence that is merely indicative of a modus operandi is not sufficient. “[A] modus operandi alone is not a common scheme; it is only a repetitive pattern” … . What is generally required is evidence of “uncharged crimes committed in order to effect the primary crime for which the accused has been indicted” … . People v DeGerolamo, 2014 NY Slip Op 02698, 1st Dept 4-17-14

 

/ ,

Court Properly Allowed Defendant to Proceed Pro Se Three Weeks Into His Murder Trial

The Third Department affirmed defendant’s conviction for murder, rejecting the claim that county court’s informing all the jurors that defendant’s prior conviction for the same offenses had been reversed, as well as the community’s knowledge about the case due to publicity, deprived defendant of a fair trial.  In addition, the Third Department concluded that the trial judge did not err in allowing the defendant to proceed pro se three weeks into the trial.  With respect to the propriety of allowing the defendant to represent himself, the court explained:

Here, there is no question that defendant’s mid-trial request to proceed pro se — made some three weeks after the trial commenced — was untimely … . Faced, however, with defendant’s repeated, articulate and impassioned pleas to represent himself, County Court elected — in an exercise of its discretion — to consider the merits of defendant’s request. Although defendant now faults County Court’s decision in this regard, we cannot say — under the particular facts of this case — that reversal upon this ground is warranted.

To be sure, the Court of Appeals has held that once a trial has commenced and witnesses have testified, a defendant’s “right [to proceed pro se] is severely constricted and the trial court must exercise its sound discretion and grant the request only under compelling circumstances” … . The rationale for this rule, however, stems from concerns regarding “the potential for obstruction and diversion” that may attend a defendant’s decision — or be part of a defendant’s strategy — to abandon representation in the midst of the trial, as well as a desire to “avert[] delay and confusion” … . Such concerns were not an issue here, however, and it is clear that, under appropriate circumstances and following sufficient inquiry, mid-trial requests to proceed pro se may be granted … . Based upon our review of the record as whole, and taking into consideration defendant’s insistence that he be allowed to proceed pro se, we are satisfied that County Court did not abuse its discretion in considering the merits of defendant’s request.

As to the sufficiency of County Court’s inquiry, suffice it to say that County Court — repeatedly and in great detail — apprised defendant of the perils and pitfalls of proceeding pro se and went to great lengths to dissuade defendant from doing so. Specifically, County Court cautioned defendant that, while he may have been well versed with the facts of his case, “[t]he practice of law [was] not a simple process” and entailed education and experience that defendant did not possess. County Court went on to note the then-impending testimony of the People’s handwriting and DNA experts and suggested that defendant consider the legal expertise that counsel could bring to examining those witnesses. Additionally, County Court advised defendant that, if he proceeded pro se, he would be held to the same standard as an attorney and would be responsible for the “day-to-day operation of the [trial],” which would include making appropriate objections and motions, cross-examining the People’s witnesses, conducting his defense and preparing a summation. In this regard, County Court expressly warned defendant that his ability to introduce certain evidence or effectively argue any applicable motions likely would be hampered by his lack of legal training, and defendant was afforded ample opportunity to consider (and reconsider) his request and to discuss the matter with counsel.

To be sure, County Court’s inquiry could have been more seamless, but the Court of Appeals has expressly rejected a strict, formulaic approach in this regard, requiring only that the record as a whole “affirmatively disclose that a trial court has delved into a defendant’s age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver” … . People v Dashnaw, 2014 NY Slip Op 02624, 3rd Dept 4-17-14

 

/ , ,

Defendant’s Statement that He Was Thinking About Talking to an Attorney, Coupled With the Officer’s Interpretation of that Statement as a Request for Counsel, Rendered Invalid Defendant’s Subsequent Agreement to Speak with the Officer without an Attorney Present

The Third Department determined that stopping the defendant, asking him questions, patting him down, and searching a nearby vehicle (in which a loaded firearm was found) were supported by what the officer was told by persons who had just flagged down the officer.  The officer (Van Allen) was told the defendant had threatened one of the persons who flagged him down with a weapon and the defendant had been driving the van that was subjected to the warrantless search.  Subsequently, the defendant told the officer “I am thinking of talking to an attorney,” after which the office stopped questioning him.  Later, when the defendant told the officer he wished to speak with him, and the officer asked if he was willing to answer questions without an attorney present, the defendant said “yes.”  The Third Department determined, in part because the officer interpreted defendant’s statement that he was thinking about talking to an attorney as a request for an attorney, the defendant’s subsequent statement should have been suppressed:

Phrases such as “I think” or “maybe” do not necessarily establish that a request for counsel is uncertain or equivocal … . The relevant inquiry is whether a reasonable police officer would have understood the statement in question as a request for an attorney … . Although this is an objective standard, the fact that an officer did, in fact, treat a defendant’s request as an assertion of the right to counsel is properly taken into account in assessing what a reasonable police officer would have believed … . Here, despite the allegedly sarcastic tone of defendant’s initial statement, VanAllen indicated that he understood it as a request for counsel by promptly ceasing his inquiries. Further, when VanAllen later twice asked whether he had requested counsel, defendant confirmed without any equivocation that he had. Under these circumstances, a reasonable police officer would have understood that defendant had asserted his right to counsel … . Accordingly, defendant’s alleged waiver was ineffective, and his statements following the initial request should have been suppressed. People v Jemmott, 2014 NY Slip Op 02630, 3rd Dept 4-17-14

 

/

Extension for Service of Complaint After Statute of Limitations Had Run Properly Granted in Exercise of Discretion

The Second Department determined Supreme Court properly exercised its discretion to allow service of a complaint after the 120 period for service had passed and the statute of limitations had run:

When considering whether to grant an extension of time to effect service beyond the 120-day statutory period in the interest of justice, the court may consider the plaintiff’s diligence, or lack thereof, along with other relevant factors, including the expiration of the statute of limitations, the potentially meritorious nature of the cause of action, the length of delay in service, the promptness of the plaintiff’s request for the extension of time, and any prejudice to the defendant … . A determination of whether to grant the extension in the interest of justice is generally within the discretion of the motion court … .

In the instant case, an attempt at proper service was made within the 120-day period, which was later adjudicated to be defective. Furthermore, the statute of limitations had expired by the time the appellant challenged service as defective in its motion to vacate the default judgment, the plaintiff promptly cross-moved for an extension of time to effect proper service, and there was no demonstrable prejudice to the appellant attributable to the delay in effecting proper service. Under the circumstances, granting an extension of time pursuant to CPLR 306-b to serve the appellant was a provident exercise of discretion … .  Siragusa v D’Esposito, 2014 NY Slip Op 02570, 2nd Dept 4-16-14

 

/

Allegations of Wrongdoing Insufficient to Support Shareholders Derivative Action Pursuant to BCL 626 (c)

The Second Department determined plaintiffs failed to make allegations sufficient to support a shareholders derivative action pursuant to Business Corporation Law 626(c):

Pursuant to Business Corporation Law § 626(c), in order to assert a derivative cause of action, in their complaint, shareholders must “set forth with particularity [their] efforts . . . to secure the initiation of such action by the board or the reasons for not making such effort” … . Here, because the plaintiffs conceded that they made no demand upon the board, they were required to plead facts demonstrating that a demand would have been futile.

“Demand is futile, and excused, when the directors are incapable of making an impartial decision as to whether to bring suit” … . A plaintiff may satisfy this standard by alleging with particularity (1) “that a majority of the board of directors is interested in the challenged transaction,” which may be based on self-interest in the transaction or a loss of independence because a director with no direct interest in the transaction is “controlled” by a self-interested director, (2) “that the board of directors did not fully inform themselves about the challenged transaction to the extent reasonably appropriate under the circumstances,” or (3) “that the challenged transaction was so egregious on its face that it could not have been the product of sound business judgment of the directors” … . However, “[t]o justify failure to make a demand, it is not sufficient to name a majority of the directors as defendants with conclusory allegations of wrongdoing or control by wrongdoers” … .

Although the plaintiffs’ proposed amended complaint alleges that the individual defendants had a personal interest in the challenged transactions, it fails to describe the challenged transactions or to explain how any but one of the corporation’s four directors would have profited from them. These “conclusory allegations of wrongdoing or control by wrongdoers” are insufficient … . Instead, to adequately plead self-interest, the complaint must set forth facts alleging that the directors “receive[d] a direct financial benefit from the transaction which is different from the benefit to shareholders generally” … . The plaintiffs have failed to satisfy this standard. Similarly, the plaintiffs’ allegations that the corporation’s directors made “lavish and unnecessary expenditures” and paid themselves “unwarranted salaries” are insufficient because they fail to “allege compensation rates excessive on their face or other facts which call into question whether the compensation was fair to the corporation when approved, the good faith of the directors setting those rates, or that the decision to set the compensation could not have been a product of valid business judgment” … . Because the proposed amended complaint fails to adequately describe the challenged transactions or allege in what manner they were inappropriate, it also fails to “allege[ ] with particularity that the board of directors did not fully inform themselves about the challenged transaction[s] to the extent reasonably appropriate under the circumstances” or that “the challenged transaction[s were] so egregious on [their] face that [they] could not have been the product of sound business judgment” … . Accordingly, the plaintiffs’ allegations, incorporating the proposed amendments, remained palpably insufficient, and the Supreme Court erred in determining that the plaintiffs had satisfied the standard for leave to amend a pleading … . Walsh v Wwebnet inc, 2014 NY Slip Op 02575, 2nd Dept 4-16-14

 

/ , , ,

No Private Right of Action for Homeowners Against Lenders Under the Home Affordable Modification Program (HAMP)—Home Affordable Modification Program Was Not Enacted Solely for the Benefit of Homeowners(?)

The Second Department, after finding that the doctrine of judicial estoppel did not apply because there was no final determination adopting the plaintiff’s contrary position in the first litigation, determined the federal Home Affordable Modification Program (HAMP), enacted pursuant to the Emergency Economic Stabilization Act of 2008 (EESA), did not create a private right of action against a lender or loan servicer.  The lender had denied plaintiff’s application for a permanent HAMP loan modification and plaintiff’s brought suit alleging breach of contract (re: a trial period plan or TPP), fraud in the inducement, promissory estoppel and a violation of General Business Law 349:

When, as here, a statute does not provide an express private right of action, the courts will imply a private right of action only upon examination of the following three factors: (1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme” … .

As to the first factor, the Emergency Economic Stabilization Act of 2008 (12 USC §§ 5201-5261; hereinafter the EESA), which authorized the United States Department of the Treasury to promulgate the HAMP, was enacted “to immediately provide authority and facilities that the Secretary of the Treasury can use to restore liquidity and stability to the financial system of the United States” (12 USC § 5201[1]) and “to ensure that such authority and such facilities are used in a manner that (A) protects home values, college funds, retirement accounts, and life savings; (B) preserves homeownership and promotes jobs and economic growth; (C) maximizes overall returns to the taxpayers of the United States; and (D) provides public accountability for the exercise of such authority” (12 USC § 5201[2]). Similarly, Section 201(a)(2)(A)(i) of the Helping Families Save Their Homes Act of 2009 (111 P.L. 22, § 201[a][2][A][i], 123 Stat 1632, 1638) simply articulated a Congressional finding that, in order to reduce the number of foreclosures and stabilize real property values, mortgage lenders should be given authorization to modify mortgage loans consistent with applicable guidelines promulgated by the United States Department of the Treasury pursuant to EESA. Thus, although financially struggling homeowners may derive a benefit from the HAMP, that program was not promulgated solely for their particular benefit … . As to the second factor, the underlying purpose of the HAMP is to incentivize mortgage loan servicers to reduce monthly mortgage payments and, thus, prevent avoidable home foreclosures … . Accordingly, a private right of action against a lender or loan servicer arising from an alleged breach of a TPP agreement is inconsistent with the purpose of HAMP, as judicial recognition of such a private right of action would deter lenders and loan servicers from participating in the HAMP … . As to the third factor, the EESA expressly provides for civil actions by the Secretary of the Treasury (see 12 USC § 5229[a][1]) and for actions seeking equitable relief against the Secretary of the Treasury (see 12 USC § 5229[a][2], [3]), but makes no reference to private rights of action by borrowers against mortgage lenders or loan servicers. Moreover, given that, as noted above, private rights of action could conceivably deter lenders and loan servicers from participating in the HAMP, which would, in turn, undermine the HAMP’s purpose, allowing for a private right of action would be inconsistent with the legislative scheme of EESA. Since the plaintiffs’ claims here are intertwined with the defendants’ alleged obligations under the HAMP, and as no private right of action exists under the HAMP, the Supreme Court should have granted the defendants’ motion to dismiss the amended complaint on the ground that it failed to state a cause of action… . [emphasis added]  Davis v Citibank NA, 2014 NY Slip Op 02557, 2nd Dept 4-16-14

 

/

Application for Undue Hardship Exception to Medicaid Ineligibility Should Have Been Granted

The Second Department determined the Department of Health (DOH) should have granted a nursing home’s (Tarrytown Hall’s) application for an undue hardship exception to Medicaid Ineligibility:

An individual will not be ineligible for Medicaid as a result of a transfer of assets if it is determined that the denial of eligibility will result in an undue hardship. An undue hardship occurs where the institutionalized individual is otherwise eligible for Medicaid, is unable to obtain appropriate medical care without the provision of Medicaid, and is unable to have the transferred assets returned (see 18 NYCRR 360-4.4).Here, the DOH’s determination that Tarrytown Hall failed to demonstrate undue hardship is not supported by substantial evidence. To the contrary, Tarrytown Hall established that the decedent was otherwise eligible for Medicaid, and further established that she was unable to obtain appropriate medical care without the provision of Medicaid by offering proof that the decedent was insolvent and unable to recover transferred assets, and that no nursing facility which could provide her with the necessary level of care would accept her. By offering this proof, Tarrytown Hall met the statutory and regulatory requirements for the undue hardship exception. Matter of Tarrytown Hall Care Ctr v McGuire, 2014 NY Slip Op 02600, 2nd Dept 4-16-14

 

/ ,

Obstruction of View of Stop Sign by Vegetation Not Actionable Against the Town Without Allegation Town Had Prior Written Notice of the Obstruction

The Second Department determined Supreme Court should have dismissed the cause of action against the Town of Oyster Bay which alleged vegetation had been allowed to obstruct a stop sign (leading to a collision).  The prior written notice requirement applied and the plaintiffs did not allege the Town had prior written notice of the obstruction:

The Town correctly argues that any claim that vegetation obstructed a driver’s view of the intersection and of traffic on the intersecting roadways is subject to its prior written notice statute … . Since the plaintiffs did not allege that the Town had received prior written notice of any obstructed sight lines in and around the subject intersection, the Supreme Court should have granted that branch of the Town’s motion which was to dismiss that claim … . Dutka v Odierno, 2014 NY Slip Op 02558, 2nd Dept 4-16-14

 

/

Defect Properly Found Trivial As a Matter of Law

The Second Department determined Supreme Court properly determined a defect in a metal sidewalk door was trivial as a matter of law.  The court explained the applicable principles:

“[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case’ and is generally a question of fact for the jury” … . However, a property owner (and tenants) may not be held liable in damages for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip … . In determining whether a defect is trivial as a matter of law, the court must examine all of the facts presented, “including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance’ of the injury” … . There is no ” minimal dimension test’ or per se rule that a defect must be of a certain minimum height or depth in order to be actionable” … . Photographs which fairly and accurately represent the accident site may be used to establish that a defect is trivial and, therefore, not actionable … . Nunez v Morwood Dry Cleaners, 2014 NY Slip Op 02564, 2nd Dept 4-16-14

 

/ , , ,

County Could Not Avoid or Delay Payment of Property Tax Refund on Financial Hardship Grounds

The Second Department determined the county did not make a sufficient showing of “fiscal chaos” to allow it to avoid immediate payment of a refund the  overpayment of property taxes:

Contrary to the appellants’ contention, the decisions of the Court of Appeals … do not stand for the proposition that a court may decline to issue an award of damages or refunds against a municipality whenever such award will result in financial hardship … . “Instead, these cases stand for the more limited proposition that, where a municipality has reasonably relied upon a widespread and longstanding practice (as in Matter of Hellerstein) or a statute is later invalidated (as in Foss), and where applying the invalidation retroactively would call into question a settled assessment roll or property rights based thereon,’ a court may exercise its discretion by giving its holding only prospective application” … . No such situation is present in the instant case. Accordingly, under the circumstances presented here, the Supreme Court properly rejected the appellants’ “fiscal chaos” defense, and granted the petitioner’s motion to compel the appellants to satisfy obligations that they incurred in connection with the stipulation of settlement and, thus, to calculate and pay the refund owed to it. Matter of Long Is Automotive Group Inc v Board of Assessors of Nassau County, 2014 Slip Op 02586, 2nd Dept 4-16-14

 

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