You are here: / Defendant’s Consent to the Substitution of a Juror Was Not Knowingly...

Search Results

/

Defendant’s Consent to the Substitution of a Juror Was Not Knowingly and Intelligently Given, Reversal Required

The Second Department, in a full-fledged opinion by Justice Chambers, determined the defendant’s consent to the substitution of a juror was not knowingly and intelligently given and reversal was required (despite the absence of an objection).  The defendant was not present when defense counsel consented to the substitution and deliberations resumed.  When the defendant arrived, he consented to the substitution.  In the mean time, however, the jury had reached a verdict.  But the trial judge had not informed the defendant a verdict had been reached at the time the defendant was asked for his consent to the substitution:

“[T]he safeguards afforded by CPL 270.35 are identical to and coextensive with the constitutional requirements for valid waiver of a jury trial” … . The decision to allow an alternate juror to be substituted for a deliberating juror must be knowing, intelligent, and voluntary … . The defendant must be “fully aware of the consequences of the choice he [or she] is making” … . In determining whether a defendant’s decision to consent to the substitution of an alternate juror for a deliberating juror is “made knowingly and understandingly, based on an intelligent, informed judgment” …, a court is required to be ” scrupulous,'” for at stake is the defendant’s “fundamental, constitutional right to a jury of 12” … . Here, the defendant’s election to substitute the alternate juror for the deliberating juror was not based on an intelligent, informed judgment. No matter how well-intentioned the trial court was in not disclosing the fact that the jury had already reached a verdict, due process required the trial court to disclose to the defendant all of the pertinent, material facts. People v Canales, 2014 NY Slip Op 04508, 2nd Dept 6-18-14

 

/ ,

Providing a False Name During Booking Did Not Trigger the Need for a Miranda Warning

The Second Department determined the police were not required to give the defendant Miranda warnings when the defendant gave a false name during the booking procedure:

When the defendant gave what a police officer suspected to be a false name, the officer warned him that giving a false name would result in an additional charge, as required by the false personation statute (see Penal Law § 190.23). The defendant then repeated the false name after being given a second warning. The officer’s warnings to the defendant did not require Miranda warnings (see Miranda v Arizona, 384 US 436). There is no basis for suppressing the defendant’s repeated use of a false name. Ascertaining an arrestee’s true name is a necessary part of the normal booking process, even if the response may have inculpatory connotations … . The false personation warnings were required by statute and were not reasonably likely to elicit an incriminating response .. . People v Allen, 2014 NY Slip Op 04503, 2nd Dept 6-18-14

 

/ ,

Warrantless Search of a Backpack Dropped During a Struggle with Police Was Not a Valid Search Incident to Arrest

The Second Department determined that the search of defendant’s backpack, which turned up a loaded weapon, was not a valid search incident to arrest.  The backpack had been dropped during a struggle with the arresting officer and the arrest took place some distance away from where the backpack was:

“Under the State Constitution, an individual’s right of privacy in his or her effects dictates that a warrantless search incident to arrest be deemed unreasonable unless justified by the presence of exigent circumstances” … . “When an individual subjected to arrest has a privacy interest in property within his or her immediate control or grabbable area’, [the Court of Appeals] has identified two interests that may justify the warrantless search of that property incident to a lawful arrest: the safety of the public and the arresting officer; and the protection of evidence from destruction or concealment” …

Contrary to the Supreme Court’s determination, the search of the backpack was not justified as a search incident to a lawful arrest. The backpack was not within the defendant’s immediate control or “grabbable area” at the time he was arrested … . Moreover, the People failed to present evidence establishing exigent circumstances at the time of the arrest that would justify the search. The detective did not assert that he searched the backpack out of concern for the safety of himself or the public, and the circumstances did not support a reasonable belief that the backpack contained a weapon … . Likewise, the detective did not assert that he searched the backpack to protect against the destruction of evidence, and the facts do not support such an assertion. People v Thompson, 2014 NY Slip Op 04524, 2nd Dept 6-18-14

 

/

Neighborhood Association Had Standing to Contest Planning Board’s Negative Finding (Re: a Construction Project) After a SEQRA Review

The Second Department affirmed Supreme Court’s determination that a neighborhood association had standing to contest the planning board’s finding that a proposed construction project would not adversely affect the environment after a review pursuant to the State Environmental Quality Review Act (SEQRA) (the board issued a “negative finding”):

The Supreme Court properly determined that the Association has standing to contest the Planning Board’s issuance of the negative declaration. An association or organization has standing when “one or more of its members would have standing to sue,” “the interests it asserts are germane to its purposes,” and “neither the asserted claim nor the appropriate relief requires the participation of the individual members” … . Here, as the Planning Board concedes in its reply brief, several Association members have standing to sue, as their properties are adjacent to the proposed project site and they have alleged potential structural harm from construction-related blasting, as well as visual harm … . Moreover, the interests that the Association asserts are germane to its purpose, and the participation of Association members is not necessary in order for the Association to obtain the relief it seeks. Accordingly, the Association satisfied all relevant criteria to establish standing … . Matter of Schlemme v Planning Bd of City of Poughkeepsie, 2014 NY Slip Op 04498, 2nd Dept 6-18-14

 

/

Denial of Mother’s Request to Relocate Reversed, Factors Described

The Second Department reversed Family Court and determined the relocation of the child with the mother was in the best interests of the child.  The mother had remarried, her husband and the child got along well, her husband had a good job and a three bedroom house in Georgia, adequate visitation with the child’s father could be arranged, and the child wished to move to Georgia. The court described the analytical factors:

The Family Court erred in denying the mother’s modification petition so as to allow her to relocate to Georgia with the subject child. A parent’s relocation request must be considered on its own merits with due consideration of all the relevant circumstances, and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child … . Courts are free to consider and give appropriate weight to all of the factors that may be relevant to the determination. These factors include, but are not limited to, each parent’s reasons for seeking or opposing the move, the quality of the relationships between the child and both parents, the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally, and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. It is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child’s best interests … . In relocation proceedings, this Court’s authority is as broad as that of the hearing court. A relocation determination will not be permitted to stand unless it is supported by a sound and substantial basis in the record … . The Family Court’s determination here was not supported by a sound and substantial basis in the record. Matter of Hall v Hall, 2014 NY Slip Op 04487, 2nd Dept 6-18-14

 

/ ,

Juvenile Entitled to Petition for Special Immigrant Juvenile Status—Family Court’s Ruling to the Contrary Reversed

The Second Department reversed Family Court and determined the subject child was eligible to petition for special immigrant juvenile status:

Pursuant to 8 USC § 1101(a)(27)(J) (as amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub L 110-457, 122 US Stat 5044) and 8 CFR 204.11, a “special immigrant” is an undocumented resident who is, inter alia, under 21 years of age, unmarried, and “declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a State, or an individual or entity appointed by a State or juvenile court located in the United States” (8 USC § 1101[a][27][J][i]). For the juvenile to qualify for SIJS status, it must be also determined that reunification with “1 or both” of the juvenile’s parents is not viable due to parental abuse, neglect, abandonment, or a similar basis found under State law (id.), and that it would not be in the juvenile’s best interest to be returned to his or her native country or country of last habitual residence (see 8 USC § 1101[a][27][J][ii]).

Based upon our independent factual review, we find that the record, which includes affidavits from Cristal and her mother, fully supports the conclusion that Cristal was abandoned by her father. Cristal never lived with her father; he visited her only once. He never provided any financial support, and failed to communicate with her. Thus, Cristal established that reunification with her father was not viable due to abandonment … . Accordingly, the Family Court should have granted Cristal’s motion. Matter of Cristal MRM, 2014 NY Slip Op 04496, 2nd Dept 6-18-14

 

/ ,

Under NYC Administrative Code, Abutting Owners Have Duty to Maintain Sidewalk in a Reasonably Safe Condition

In reversing Supreme Court, the First Department noted that, pursuant to the NYC Administrative Code, owners of abutting properties are responsible for the safe condition of the sidewalk.  Here it was alleged that defendant’s workers placed garbage bags on the sidewalk which leaked and plaintiff slipped on the slippery sidewalk:

Plaintiff alleges that she slipped on a greasy liquid leaking from garbage bags placed on the public sidewalk by defendant’s workers. Pursuant to Administrative Code of the City of New York § 7-210(b), the owner of property abutting a public sidewalk has a duty to maintain the sidewalk in a reasonably safe condition and is liable for failure to do so … .

Plaintiff’s testimony that she saw defendant’s workers placing garbage bags on the sidewalk in the morning raises issues of fact as to whether defendant is responsible for creating the alleged slippery condition … . Torres v New York City Hous Auth, 2014 NY Slip Op 04425, 1st Dept 6-17-14

 

/ ,

New York Courts Do Not Have Jurisdiction Over Intra-Tribal Matters

The First Department determined New York courts do not have subject matter jurisdiction over an election dispute concerning competing tribal councils.  The court also addressed the waiver of sovereignty by a Native American tribe and noted that the jurisdiction of a New York court conveyed by 25 USC 233 does not extend beyond the borders of the state (tribe was located in California):

New York courts do not have subject matter jurisdiction over the internal affairs of Indian tribes” … . “[A]n election dispute concerning competing tribal councils” is a “non-justiciable intra-tribal matter” … . Appellants seek a declaration that defendant Chukchansi Economic Development Authority (CEDA) is lawfully governed by a board composed of seven named individuals; however, appellants themselves allege in their counterclaim and cross claims that the members of the CEDA Board are the same as the members of defendant Tribal Council of the Tribe of Picayune Rancheria of the Chukchansi Indians. Wells Fargo Bank NA v Chukchansi Economic Dev Auth, 2014 NY Slip Op 04437, 1st Dept 6-17-14

 

/ , ,

Allegation of “But For” Element of Attorney Malpractice Too Speculative

The First Department determined plaintiff had not sufficiently alleged the “but for” element of an attorney malpractice action.  Plaintiff alleged she would have won the arbitration in which the attorney represented her if the attorney had submitted certain evidence. The First Department found the allegation too speculative to support the action:

Plaintiff failed to allege facts that would satisfy the proximate cause element, namely, that “but-for” defendants’ alleged inadequate and ineffective representation of her in the underlying arbitration, she would have succeeded in demonstrating that her parents lacked an ownership interest in a contested family asset … . Plaintiff stated that if defendants had introduced her parents’ personal income tax returns in the underlying arbitration proceeding, the arbitration panel would have had no choice but to consider them, credit their contents, and hold that the information contained therein (i.e., that the parents allegedly made no claim of an ownership interest in the contested family asset) was binding against the parents in accordance with the tax estoppel doctrine. The contention that mere submission of the parents’ personal income tax filings in the arbitration proceeding would necessarily have altered the arbitration panel’s determination regarding the parents’ ownership interest in the subject asset is grounded in speculation, and thus, insufficient to sustain a claim for legal malpractice … . Cusimano v Wilson, Elser, Moskowitz, Edelman & Dicker, 2014 NY Slip Op 04428, 1st Dept 6-17-14

 

/ ,

General Language—“Disposition”—Limited in Scope by More Specific Words—“Sale or Transfer”

The First Department, over a dissent, determined that the rules of contract interpretation did not allow the collection of a “transaction fee” by plaintiff financial advisor with respect to the defendant’s purchase of notes in anticipation of the purchase of a mine.  When the financing for the mine fell through, the defendant sold back the notes in accordance with the purchase agreement with the seller of the notes.  The plaintiff sought a “transaction fee” for that transaction:

…[T]he motion court unreasonably construed the parties’ agreement in arriving at the conclusion that plaintiff was entitled to a “transaction fee” in connection with defendant’s aborted acquisition of a participation interest in the notes. The letter agreement provides that plaintiff is entitled to a “transaction fee” following the consummation or closing of a “transaction,” which it defines as the “sale, transfer or other disposition . . . [of] a portion of the assets, businesses or securities of [defendant].” The acquisition in question was admittedly not a “sale” or “transfer.” Nor can it be considered a “disposition,” as plaintiff contends. The term “disposition” does not appear in isolation in the agreement, but as a catch-all at the end of the phrase “sale, transfer or other disposition.” Thus, under the principle of ejusdem generis, the general language “or other disposition” must be construed as limited in scope by the more specific words “sale” and “transfer” that preceded it … . Miller Tabak + Co LLC v Senetek PLC, 2014 NY Slip Op 04418, 1st Dept 6-17-14

 

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