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Defendant’s Papers Deemed Insufficient to Trigger Need for Suppression Hearing

The Third Department determined the defendant’s motion papers did not demonstrate the need for a suppression hearing:

Because defendant failed to allege sufficient facts to justify a hearing, County Court did not err in summarily denying defendant’s motion for a Mapp hearing…. Motion papers seeking suppression of evidence “must state the ground or grounds of the motion and must contain sworn allegations of fact . . . supporting such grounds” (CPL 710.60 [1]).A hearing is not automatic; a court may summarily deny the motion if the papers do not allege a legal basis for suppression  or if the factual allegations do not as a matter of law support any alleged ground (see CPL 710.60 [3];…) “[F]actual sufficiency should be determined with reference to the face of the pleadings, the context of the motion and [the] defendant’s access to information”….  Here, defendant made his motion after he was supplied with the search warrant application, supporting documents and return, as well as discovery. He had resolved the other criminal charges that precipitated the warrant application, providing him with information related to the situation surrounding the application. In these circumstances, defendant’s bare allegation of a lack of probable cause, without any factual support, was insufficient to require a hearing …   Accordingly, the court properly determined that a hearing was not necessary to decide the motion. People v Vanness, 103553, 3rd Dept, 5-16-13

 

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Proper Procedure for Resentencing Under Drug Law Reform Act Explained

The Third Department explained the proper procedure for resentencing under the Drug Law Reform Act as follows:

The Drug Law Reform Act establishes a specific procedural course that was not followed here. Upon  finding a  defendant eligible for resentencing, the court must  issue a  written interlocutory order informing the defendant of the term of imprisonment  it intends to impose, setting forth findings of fact and the reasons underlying the proposed resentence, and advising the defendant  that, unless he or she withdraws  the application or appeals from the interlocutory order, the court will vacate the original sentence and impose the proposed resentence (see L 2004, ch 738, § 23).County  Court’s failure to proceed  in this manner deprived defendant of the opportunity to carefully consider his options, including the taking of an  appeal  from  the interlocutory order.  People v Minor, 104880, 3rd Dept, 5-16-13

 

 

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Gang Affiliation and Prior Drug Offenses Admissible Under Molineux in Murder Case/Motion to Suppress Statement Made When Questioning Continued After Defendant Stated He Did Not Want to Answer Any More Questions Should Have Been Granted

The Third Department determined evidence of defendant’s gang affiliation and uncharged drug offenses were admissible in defendant’s murder trial under Molineux.  In addition, the Third Department determined defendant’s statements made after he said he didn’t want to answer any more questions should have been suppressed.  [The Third Department rejected the People’s argument that the suppression issue was decided in a prior prosecution and the doctrine of collateral estoppel should apply.] With respect to the Molineux and “right to remain silent” issues, the Court wrote:

“Generally speaking, evidence of uncharged  crimes or prior bad acts may be admitted where they fall within the recognized Molineux exceptions – motive, intent, absence of mistake, common plan or scheme and identity – or where such proof is inextricably interwoven with the charged crimes, provide[s] necessary background or complete[s] a witness’s narrative” … . Here, defendant’s drug-related activities and purported gang membership provided necessary background information, explained how [the other parties] and defendant knew one another (as well as why defendant’s acquaintances went along with his plan to rob the weed spot[where the murder took place]) and, viewed in the context of the activities that occurred prior to the shooting, established both defendant’s awareness of the weed spot and a motive for the shooting; thus, such “evidence was highly probative of several relevant and material issues at trial and genuinely interwoven with the facts surrounding the shooting” … .

The case law makes clear that “[a] defendant’s invocation of the right to remain silent must be scrupulously honored” … once the right is asserted in an “unequivocal and unqualified” fashion … Whether  a defendant’s  request in this regard is “unequivocal is a mixed question of law and fact that must be determined with reference to  the  circumstances surrounding  the  request[,] including the defendant’s demeanor, manner of expression and the particular words found to have been used by the defendant” … .  People v Johnson, 104081, 3rd Dept, 5-16-13

SUPPRESSION, SUPPRESS

 

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No Cause of Action Based Upon “Vicious Propensities” When Plaintiff Knocked Down by Playful Dog

In determining summary judgment should have been granted to the defendant dog owners, the Third Department explained the defendants had demonstrated they had no prior knowledge of the dog’s vicious propensities.  The plaintiff was injured when defendant’s dog [Delilah] bumped into her while running in play, activity the Third Department determined was “normal canine behavior” which could not be considered a vicious propensity:

It is well established that “‘the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be held liable for the harm the animal causes as a result of those propensities'” …. As the movants, it was defendants’ burden to establish that they had no prior knowledge that Delilah had any vicious propensities …. Notably, a vicious propensity does not  necessarily have  to be  “dangerous  or ferocious” but, rather, may consist of a proclivity to act in a way that puts others at risk of harm, so long  as “‘such proclivity results in the injury giving rise to the lawsuit'” .   Nonetheless, “normal canine behavior” is insufficient to establish a vicious propensity ….  Bloom v Van Lenten, 515606, 3rd Dept, 5-16-13

 

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“Sophisticated and Well-Counseled Entity” Did Not Make Prima Facie Claim of Fraud; No Due Diligence Demonstrated

In reversing the motion court’s denial of defendant’s motion to dismiss plaintiff’s causes of action for fraud, the First Department, over a strong dissent, determined the complaint did not, as a matter of law, establish justifiable reliance upon alleged misrepresentation.  In essence, the First Department determined that “sophisticated and well-counseled entities,” to preserve a prima facie claim of fraud, must demonstrate due diligence in taking measures to protect against fraud:

Plaintiff alleges that it was fraudulently induced to issue a financial guaranty for a portion of an investment by defendant’s misrepresentation that a nonparty hedge fund was taking a long position in the investment when in fact, such fund was actually a short seller, which was influencing the selection of the reference portfolio it was effectively betting against. ……[P]laintiff’s amended complaint …fails to establish justifiable reliance as a matter of law. Indeed, plaintiff fails to plead that it exercised due diligence by inquiring about the nonpublic information regarding the hedge fund with which it was in contact prior to issuing the financial guaranty, or that it inserted the appropriate prophylactic provision to ensure against the possibility of misrepresentation…. ACA Fin Guar Corp v Goldman, Sachs, & Co, 2013 NY Slip Op 03429, 1st Dept, 5-14-13

 

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Differences Between Civil and Criminal Contempt Explained

In sending the case back to Supreme Court for a hearing on the issue of whether defendant is guilty of civil and/or criminal contempt (re: the violation of a court order), the Second Department explained the differences between the two types of contempt as follows:

“Civil contempt (see Judiciary Law § 753) has as its aim the vindication of a private party to litigation'” …. In order to prevail on a motion to hold a party in contempt, the moving party must demonstrate that the party charged with contempt violated a clear and unequivocal mandate of the court, thereby prejudicing the moving party’s rights … .”It is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes, or prejudices the rights or remedies of a party …. “The burden of proof is on the proponent of the contempt motion, and the contempt must be established by clear and convincing evidence” … .

“[U]nlike a civil contempt proceeding, [in a criminal contempt proceeding,] proof of guilt must be established beyond a reasonable doubt” …. “The purpose of criminal contempt (see Judiciary Law § 750) is to vindicate the authority of the court. No showing of prejudice to the rights of a party to the litigation is needed since the right of the private parties to the litigation is not the controlling factor'” … .However, “[a]n essential element of criminal contempt is willful disobedience. Knowingly failing to comply with a court order gives rise to an inference of willfulness which may be rebutted with evidence of good cause for noncompliance” … .  Gomes v Gomes, 2013 NY Slip Op 03454, 2nd Dept, 5-15-13

 

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Elements of Retaliatory Termination Described

The Second Department explained the elements of retaliatory termination as follows:

Pursuant to Executive Law § 296, it is unlawful to retaliate against an employee because he or she opposed statutorily forbidden discriminatory practices …. To make a prima facie showing of retaliation under Executive Law § 296, a claimant is required to show that (1) the claimant was engaged in protected activity, (2) the claimant’s employer was aware that he or she participated in such activity, (3) the claimant suffered an adverse employment action based upon his or her activity, and (4) there was a causal connection between the protected activity and the adverse action …. Once this initial showing is made, the burden then shifts to the defendant to present legitimate, independent, and nondiscriminatory reasons to support its actions. Assuming the defendant meets this burden, the claimant would then have the obligation to show that the reasons put forth were merely a pretext … .  Adeniran v State of New York, 2013 NY Slip Op 03441, 2nd Dept, 5-15-13

 

 

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Existence of Brady Material Concerning Law Suit Against Interrogating Officer for Eliciting a False Confession Required Hearing on Motion to Vacate Judgment of Conviction

The defendant claimed that his confession was involuntary because he was physically abused by the interrogating officer (O’Leary). After his conviction for depraved indifference murder the defendant brought a motion to vacate the conviction on the ground that the interrogating officer had been sued for allegedly extracting a false confession and the prosecution did not provide that “Brady” material to him.  In reversing the trial court’s denial of the motion to vacate and remitting the matter for a hearing, the Second Department wrote an exhaustive overview of the law concerning “Brady” material in New York.  Although rather long, the court’s explanation is provided here because of its clarity:

A defendant is entitled, under the state and federal constitutions, “to discover favorable evidence in the People’s possession material to guilt or punishment”)…. Indeed, the law requires that Brady material be produced whether or not the defendant requests any such evidence …. To establish a Brady violation, the “evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued” because the evidence was material … .

Here, the allegedly suppressed evidence clearly fell within the ambit of the prosecutor’s Brady obligation because it constituted impeachment evidence…. Moreover, the People’s failure to disclose the existence of the civil action may have denied the defendant the opportunity to conduct an investigation leading to additional exculpatory or impeaching evidence , for instance, providing a basis for the disclosure of police personnel records otherwise unavailable … .

“In New York, where a defendant makes a specific request for a document, the materiality element is established provided there exists a reasonable possibility’ that it would have changed the result of the proceedings” ….”Absent a specific request by defendant for the document, materiality can only be demonstrated by a showing that there is a reasonable probability’ that it would have changed the outcome of the proceedings” …. Here, the record does not demonstrate that the defendant made a specific request for the allegedly suppressed information. Nevertheless, we find that there was a “reasonable probability” that disclosure of the lawsuit would have changed the outcome of the defendant’s trial. The primary evidence at trial establishing the defendant’s identity as the murderer was his confession. The other evidence tying him to the crime was weak, consisting of testimony that he was seen with the victim shortly before she disappeared. Since the credibility of the detectives who obtained the defendant’s confession was of central importance in the case, the nondisclosure was material … .

Accordingly, a hearing is necessary to determine whether the District Attorney’s office had sufficient knowledge of the suit against O’Leary so as to trigger its obligations under Brady. Evidence subject to disclosure under Brady includes evidence “known only to police investigators and not to the prosecutor”…, and, therefore, “the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in th[is] case, including the police” … ;This rule is based upon the principle that “[t]he government cannot with its right hand say it has nothing while its left hand holds what is of value” …. Here, the attorney’s affirmation submitted in opposition to the defendant’s motion, which was based only on a review of files, is insufficient to establish that no one to whom the obligation under Brady extended, other than perhaps O’Leary himself …, had knowledge of the civil action at any time during which the prosecution’s Brady obligation was ongoing.   People v Garrett, 2013 NY Slip Op 03498, 2nd Dept, 5-15-13

 

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SORA Applies to Out of State Sex Offense

In affirming Supreme Court’s determination that petitioner (who pled nolo contendre to a sex offense in Florida and was registered as a sex offender in Florida) must register as a sex offender in New York (upon moving to New York), the Second Department wrote:

SORA provides that any “sex offender” must comply with its provisions (see Correction Law § 168-f). A “sex offender” is defined as “any person who is convicted” of a “sex offense” (Correction Law § 168-a[1], [2]). The definition of a “sex offense” with respect to an offense committed in another jurisdiction is “a conviction of [i] an offense in any other jurisdiction which includes all of the essential elements of any such crime” that constitutes a “sex offense” under SORA (Correction Law [*2]§ 168-a[2][d][i]). The statute also provides that a “sex offense” includes a “conviction of . . . [ii] a felony in any other jurisdiction for which the offender is required to register as a sex offender in the jurisdiction in which the conviction occurred” (Correction Law § 168-a[2][d][ii]). Matter of Kasckarow v Board of Examiners of Sex Offenders of State of NY, 2013 Slip Op 03485, 2nd Dept, 5-15-13

 

 

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UCC Four-Year Statute of Limitations Applied to Breach of Warranty Cause of Action​

The Second Department affirmed Supreme Court’s determination that a guarantee which stated “if any defects in manufacturing, materials or workmanship occurred within 10 years the product would be repaired, replaced or purchase price refunded” was not a warranty which extended to future performance within the meaning of UCC 2-725[2]. The four-year UCC statute of limitations therefore applied to the warranty cause of action.  In addition, the Second Department affirmed the dismissal of the “fraudulent concealment” cause of action.  The Court’s discussion of the law concerning those two issues follows:

A cause of action alleging breach of warranty is governed by a four-year statute of limitations (see UCC 2-725[1]…). Generally, a breach of warranty action accrues “when tender of delivery is made” (UCC 2-725[2];…). As an exception to this general rule, the UCC provides that “where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance,” then “the cause of action accrues when the breach is or should have been discovered” (UCC 2-725[2];…). “A warranty of future performance is one that guarantees that the product will work for a specified period of time”… . However, “[w]arranties to repair or replace [a] product in the event that it fails to perform, without any promise of performance, do not constitute warranties of future performance” … . * * *

In pleading a cause of action to recover damages for fraud, “the circumstances constituting the wrong shall be stated in detail” (CPLR 3016[b];…) A cause of action sounding in fraud must allege that the defendant knowingly misrepresented or concealed a material fact for the purpose of inducing another party to rely upon it, and that the other party justifiably relied upon such misrepresentation or concealment to his or her own detriment…. “A cause of action to recover damages for fraudulent concealment requires, in addition to allegations of scienter, reliance, and damages, an allegation that the defendant had a duty to disclose material information and that it failed to do so”… Schwatka v Super Millwork, Inc, 2013 NY Slip Op 03470, 2nd Dept, 5-15-13

 

 

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